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Courts Undecided on How to Handle Email Threads in Electronic Discovery

Courts Undecided on How to Handle Email Threads in Electronic Discovery

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Published by Clearwell Systems
The Clearwell E-Discovery Platform’s treatment of email threads is extremely helpful for preparing your litigation response. In fact, Clearwell has received two patents related to email threading, one for constructing email threads and its ranking and another for determining derived emails from other containing emails and duplication in the context of original emails
The Clearwell E-Discovery Platform’s treatment of email threads is extremely helpful for preparing your litigation response. In fact, Clearwell has received two patents related to email threading, one for constructing email threads and its ranking and another for determining derived emails from other containing emails and duplication in the context of original emails

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Published by: Clearwell Systems on Nov 09, 2010
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E-Discovery Insights
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Clearwell Systems, Inc.Courts Undecided on How to Handle Email Threads in Electronic Discovery by Venkat Ranganon June 21st, 2010Much of the business and personal productivity that comes inthe digital world is from email and its unique abilities. Emailallows us to communicate in a way that helps us associatecontext to our discussions, namely in its ability to be chainedinto a sequential thread when email users reply to or forwardemails they previously received. This accomplishes twoimportant tasks: 1) it allows the person sending the reply orforward to get an understanding of the issues so he/she cancraft a meaningful response, and 2) it allows the person receiving the response to understandthat response in the context of other on-going discussions. Email programs such asMicrosoft Outlook, Eudora,andGmailhelp by automatically including content from prior emails, thus producing a long chain of reference.It is no coincidence that emails thus constitute key evidentiary value in the context of litigation.The inherent value captured in emails is what makes email productions central to pre-trialdisclosures and theelectronic discoverythat precedes it. Courts have long recognized thatemails are a business record and subject to discovery. Establishing who said what in the contextof a matter in dispute is greatly facilitated by examining the thread of emails recorded in emailrepositories. With respect to electronic discovery, however, email threading presents severalunique challenges. The area of greatest confusion and uncertainty has been the determinationof privilege when emails are exchanged within-house ediscoverycounsel and attorneys and whether suchemails are protected by attorney-client privilege or not. A central issue is the composition of privilege logs under these circumstances.There are several legal opinions on the matter of intermingling privileged and non-privilegedcommunications in an email chain. These opinions have left the matter with little clarity,especially regarding whether the entire email thread is privileged or whether individual emailsmust be separated out and classified as privileged, with a privilege log listing them. Typically,the most recent email in a thread contains all other emails in that thread. Separating outindividual emails (i.e., the contained emails) from the containing email would allow fortreatment of just the portions of the email thread that may have privilege. When suchseparation is permitted, some contained emails may be assessed as privileged while others maynot. However, it is entirely possible that the contained email is also present as an independentemail under possession of the same custodian or another custodian. When it is present, onecould argue that the contained email can just be ignored, and if the corresponding email isresponsive, one can ignore the contained email. But rarely does a collection include a completeset of custodians, so the question of whether the privilege log should include the containeditem in question still remains. In terms of management of review, and for constructing aTo read more visitwww.clearwellsystems.com/e-discovery-blog/ 1
 
E-Discovery Insights
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Clearwell Systems, Inc.privilege log, treating the most recent email and all its contained emails as a single entity is lessexpensive and cleaner than separating and determining privilege status of each containedemail.Another complicating factor is simply a determination of privilege. Does the mere fact that anattorney was listed as a courtesy CC recipient make the entire email privileged? And, when suchemails are then forwarded only to an attorney involved in the case, with a legal strategydiscussed in the containing email, is only the new content added to the containing email
privileged, or does the privilege determination extend to the other contained emails? Let’s
 examine a few opinions for guidance.With respect to privilege there is a significant body of opinions that would suggest that onlycommunications that explicitly seek legal advice are privileged.
“With respect to internal communications involving in
-
house counsel, a party “must make a
 
‘clear showing’ that the ‘speaker’ made the communications for the express purpose of 
 
obtaining or providing legal advice”,
Chevron Texaco Corp., 241 F. supp 2d) at 1076 (quoting InRe Sealed Case, 737 F.2d 94 (D.C. Cir. 1984)). If the legal and business advice are inextricablyint
ertwined, “the legal advice must predominate over the business advice, and not be merely
 
incidental, for the communications to be protected under attorney client privilege.” Evidently,
 attempts to include an incidental attorney in a thread would not offer privilege protections.However, the issue is complicated if the most recent containing email is indeed a genuineattempt to seek such guidance. Here again, there are two opinions. In United States v. ChevronTexaco Corp., 241 F. supp. 2d 1065, 1074 n.6 (N.D. Cal. 2002), we note that:
“With respect to each series of emails for which Chevron asserts protection under privilege,
 Chevron breaks the series into each discrete message. In our view, such a representation of thedocument is misleading. Each email/com
munication consists of the text of the sender’s
 message as well as all of the prior emails attached to it.
Therefore, Chevron’s assertion that
 
each separate email stands as an independent communication is inaccurate.”The above would
 have you prepare a single entity with the most recent containing email and all other quotedemails treated as a single unit. On the other hand, we see the opposite opinion in UniversalService Fund Telephone Billing Practices Litigation, 232 F.R.D. 669, 674 (D. Kan. 2005) where
“the court strongly encourages counsel, in the preparation of future privilege logs, to list each
 
email within a strand as a separate entry”. In a related ruling, the court notes: “Obviously, a
 sufficient (i.e., reasonably detailed) privilege log is vital if litigants and judges are to determine
whether documents have been properly withheld from discovery.” As mentioned earlier, this
 can be much more expensive from a review and production standpoint.In Chemtech Royalty Assoc., L.P. v. United States, Nos. 05-cv-00944, 06-cv-00258, 07-cv-00405,at (M.D. La. Mar. 30, 2009),
we get another perspective: “Asserting privilege for an entire email
 thread in the privilege log, but only describing the last message
in the thread is deficient.”
 To read more visitwww.clearwellsystems.com/e-discovery-blog/ 2
 
E-Discovery Insights
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Clearwell Systems, Inc.In BaxterHealthcare Corp. v. Fresenius Med. Care Holding, Inc., No. 07-cv-01359, 2008 BL229777 at (N.D. Cal. Oct 10, 2008), the defendants are ordered to produce a privilege log that
“separately identifies the author, recipient(s), copyee(s), and blind carbo
n copyee(s) for eachlogged email communication regardless of whether the communication is part of an email
string”. The court directive is: “Each email is a separate communication, for which a privilege
 may or may not be applicable. Defendants cannot justify aggregating authors and recipients for
all emails in a string and then claiming privilege for the aggregated emails.”
 Thus, the contained emails must be treated as separate privilege log entries.InVioxx Products Liability Litigation, 501 F. Supp. 2d 789, 812 (E.D. La 2007) the court notes:
“Email threads in which attorneys are ultimately involved were usually listed on the privilege
 
log as one message.” Further, “Simply because technology has made it possible to physically
 link these separate communications (which in the past would have been separate memoranda)does not justify treating them as one communication and denying party a fair opportunity to
evaluate privilege claims raised by the producing party.”
 Again, the preference has been to separate out individual contained emails as independentemails with corresponding privilege log.In C.T. v. Liberal School District, Nos. 06-cv-02093, 06-cv-02360, 06-cv-02359, 2007 BL 21826 at(D. Kan. May 24, 2007), the court orders the plaintiff to submit an amended privilege log thatlisted email in a string as a separate entry.In Se. Pa. Transport Authority v. Caremark PCS Health, L.P., 254 F.R.D., 253, 264-65 (E.D., Pa2008)
court recommends “analyzing emails in chain separately to rule on defendant’s privilege
 
claims”.
 Another significant opinion is found in Muro v. Target Corp., 250 F.R.D. 350 (N.D. Ill. 2007). Inaddition to at least four motions, an in camera review was requested for identifying theprivilege status of eighty nine documents. Here, the court ruled that FRCP Rule 26(b)(5)(A)does not require that all contained emails be separated out.However, the court sustains
Target’s objection to the Magistrate Judge’s ruling that its privilege log was inadequate for
 failure to separately itemize each individual email quoted in an email string. In Muro, though,you are allowed to treat an entire email as a single entity only if the non-privilegedcommunications in that chain are otherwise disclosed. Hence, if you wish to treat an email as asingle unit, you are required to either disclose the individual contained emails from othercustodians, or to list them as Derived Emails (see below).Another important case is the Rhoads Industries Inc. v. Building Materials Corp. of America et al2008, WL 5082993 (E.D. Pa Nov. 26, 2008), where the court rendered the opposite opinion:To read more visitwww.clearwellsystems.com/e-discovery-blog/ 3

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