E-Discovery Insights – Clearwell Systems, Inc.

Courts Undecided on How to Handle Email Threads in

Electronic Discovery

by Venkat Ranganon June 21st, 2010

Much of the business and personal productivity that comes in

the digital world is from email and its unique abilities. Email
allows us to communicate in a way that helps us associate
context to our discussions, namely in its ability to be chained
into a sequential thread when email users reply to or forward
emails they previously received. This accomplishes two
important tasks: 1) it allows the person sending the reply or
forward to get an understanding of the issues so he/she can
craft a meaningful response, and 2) it allows the person receiving the response to understand
that response in the context of other on-going discussions. Email programs such as Microsoft
Outlook, Eudora, and Gmail help 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-trial
disclosures and the electronic discovery that precedes it. Courts have long recognized that
emails are a business record and subject to discovery. Establishing who said what in the context
of a matter in dispute is greatly facilitated by examining the thread of emails recorded in email
repositories. With respect to electronic discovery, however, email threading presents several
unique challenges. The area of greatest confusion and uncertainty has been the determination
of privilege when emails are exchanged with in-house ediscovery counsel and attorneys and whether such
emails 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-privileged
communications 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 emails
must 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 out
individual emails (i.e., the contained emails) from the containing email would allow for
treatment of just the portions of the email thread that may have privilege. When such
separation is permitted, some contained emails may be assessed as privileged while others may
not. However, it is entirely possible that the contained email is also present as an independent
email under possession of the same custodian or another custodian. When it is present, one
could argue that the contained email can just be ignored, and if the corresponding email is
responsive, one can ignore the contained email. But rarely does a collection include a complete
set of custodians, so the question of whether the privilege log should include the contained
item in question still remains. In terms of management of review, and for constructing a

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privilege log, treating the most recent email and all its contained emails as a single entity is less
expensive and cleaner than separating and determining privilege status of each contained
email.

Another complicating factor is simply a determination of privilege. Does the mere fact that an
attorney was listed as a courtesy CC recipient make the entire email privileged? And, when such
emails are then forwarded only to an attorney involved in the case, with a legal strategy
discussed 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 only
communications 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 In
Re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984)). If the legal and business advice are inextricably
intertwined, “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 genuine
attempt to seek such guidance. Here again, there are two opinions. In United States v. Chevron
Texaco 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 the
document is misleading. Each email/communication 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 quoted
emails treated as a single unit. On the other hand, we see the opposite opinion in Universal
Service 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.”

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In BaxterHealthcare Corp. v. Fresenius Med. Care Holding, Inc., No. 07-cv-01359, 2008 BL
229777 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 carbon copyee(s) for each
logged 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 independent
emails 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 that
listed 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., Pa
2008) 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). In
addition to at least four motions, an in camera review was requested for identifying the
privilege 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-privileged
communications in that chain are otherwise disclosed. Hence, if you wish to treat an email as a
single unit, you are required to either disclose the individual contained emails from other
custodians, or to list them as Derived Emails (see below).

Another important case is the Rhoads Industries Inc. v. Building Materials Corp. of America et al
2008, WL 5082993 (E.D. Pa Nov. 26, 2008), where the court rendered the opposite opinion:

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“Each version of an email string (i.e., a forward or reply of a previous email message) must be
considered a separate, unique document, and therefore each message of the string which is
privileged must be separately logged in order to claim privilege in that particular document.”

Of course, the context of the Rhoades opinion is the statement: “In the world of electronic
communications, a series of email messages, among people employed by the client, but
working in different locations, can replace the meeting with an attorney and subsequent
letter.” However, this opinion is very debatable.

An entirely different approach is suggested in Apsley v. Boeing Co., No. 05-cv-01368, 2008 BL
12035 at (D. Kan. Jan 22, 2008), with the opinion “Although Boeing listed on its privilege log
entire email strings, it redacted only the portion of the string that contained legal
communications.” While this seems to be a perfectly reasonable approach, wouldn’t this
compromise case strategy since the very fact that certain portions of the non-privileged,
unredacted emails were being exchanged with in-house counsel and is therefore part of an
attorney communication can be damaging?

Suffice it to say, the courts differ in their opinions on how to handle email threads and their
privileged logs. It is in this context that 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 de-
duplication in the context of original emails. Clearwell has advanced email meta-data and
content analytics to piece together all emails of a thread. Furthermore, its Derived Email
feature separates out contained emails as complete emails, which are then de-duplicated
against other emails that are not derived from a contained email. In situations where such a
duplicate is not identified, the derived email is maintained in a special state. Also, the
containing email’s thread is separated out in such a way that each individual email’s privilege
status can be determined. One can apply either a single- or multiple-record policy satisfying
whatever the prevailing opinion is from the bench. Also, Clearwell’s redaction capabilities and
its ability to produce the same set of documents for multiple parties allow the case team to
provide a quick turnaround if there is a motion to produce either a privilege log or the non-
privileged snippets of emails. Such technology can be a lifesaver when it comes to meeting
electronic discovery obligations.

Related Links:
E-Discovery.
Legal Discovery
Email Analysis
E mail Discovery

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