e-discovery 2.0

The U.S. Court of Appeals for the Federal Circuit dealt Google a devastating blow Monday in connection with Oracle America’s patent and copyright infringement suit against Google involving features of Java and Android. The Federal Circuit affirmed the district court’s order that a key email was not entitled to protection under the attorney-client privilege.

Google had argued that the email was privileged under Upjohn Co. v. United States, asserting that the message reflected discussions about litigation strategy between a company engineer and in-house counsel. While acknowledging that Upjohn would protect such discussions, the court rejected that characterization of the email.  Instead, the court held that the email reflected a tactical discussion about “negotiation strategy” with Google management, not an “infringement or invalidity analysis” with Google counsel.

Getting beyond the core privilege issues, Google might have avoided this dispute had it withheld the eight earlier drafts of the email that it produced to Oracle. As we discussed in our previous post, organizations conducting privilege reviews should consider using robust, next generation eDiscovery technology such as email analytical software, that could have isolated the drafts and potentially removed them from production. Other technological capabilities, such as Near Duplicate Identification, could also have helped identify draft materials and marry them up with finals marked as privileged. As this case shows, in the fast moving era of eDiscovery, having the right technology is essential for maintaining a strategic advantage in litigation.

2012 is the Year of the Dragon – which is fitting, since no other Chinese Zodiac sign represents the promise, challenge, and evolution of predictive coding technology more than the Dragon.  The few who have embraced predictive coding technology exemplify symbolic traits of the Dragon that include being unafraid of challenges and willing to take risks.  In the legal profession, taking risks typically isn’t in a lawyer’s DNA, which might explain why predictive coding technology has seen lackluster adoption among lawyers despite the hype.  This blog explores the promise of predictive coding technology, why predictive coding has not been widely adopted in eDiscovery, and explains why 2012 is likely to be remembered as the year of predictive coding.

What is predictive coding?

Predictive coding refers to machine learning technology that can be used to automatically predict how documents should be classified based on limited human input.  In litigation, predictive coding technology can be used to rank and then “code” or “tag” electronic documents based on criteria such as “relevance” and “privilege” so organizations can reduce the amount of time and money spent on traditional page by page attorney document review during discovery.

Generally, the technology works by prioritizing the most important documents for review by ranking them.  In addition to helping attorneys find important documents faster, this prioritization and ranking of documents can even eliminate the need to review documents with the lowest rankings in certain situations. Additionally, since computers don’t get tired or day dream, many believe computers can even predict document relevance better than their human counterparts.

Why hasn’t predictive coding gone mainstream yet?

Given the promise of faster and less expensive document review, combined with higher accuracy rates, many are perplexed as to why predictive coding technology hasn’t been widely adopted in eDiscovery.  The answer really boils down to one simple concept – a lack of transparency.

Difficult to Use

First, early predictive coding tools attempt to apply a complicated new technological approach to a document review process that has traditionally been very simple.  Instead of relying on attorneys to read each and every document to determine relevance, the success of today’s predictive coding technology typically depends on review decisions input into a computer by one or more experienced senior attorneys.  The process commonly involves a complex series of steps that include sampling, testing, reviewing, and measuring results in order to fine tune an algorithm that will eventually be used to predict the relevancy of the remaining documents.

The problem with early predictive coding technologies is that the majority of these complex steps are done in a ‘black box’.  In other words, the methodology and results are not always clear, which increases the risk of human error and makes the integrity of the electronic discovery process difficult to defend.  For example, the methodology for selecting a statistically relevant sample is not always intuitive to the end user.  This fundamental problem could result in improper sampling techniques that could taint the accuracy of the entire process.  Similarly, the process must often be repeated several times in order to improve accuracy rates.  Even if accuracy is improved, it may be difficult or impossible to explain how accuracy thresholds were determined or to explain why coding decisions were applied to some documents and not others.

Accuracy Concerns

Early predictive coding tools also tend to lack transparency in the way the technology evaluates the language contained in each document.  Instead of evaluating both the text and metadata fields within a document, some technologies actually ignore document metadata.  This omission means a privileged email sent by a client to her attorney, Larry Lawyer, might be overlooked by the computer if the name “Larry Lawyer” is only part of the “recipient” metadata field of the document and isn’t part of the document text.  The obvious risk is that this situation could lead to privilege waiver if it is inadvertently produced to the opposing party.

Another practical concern is that some technologies do not allow reviewers to make a distinction between relevant and non-relevant language contained within individual documents.  For example, early predictive coding technologies are not intelligent enough to know that only the second paragraph on page 95 of a 100-page document contains relevant language.  The inability to discern what language  led to the determination that the document is relevant could skew results when the computer tries to identify other documents with the same characteristics.  This lack of precision increases the likelihood that the computer will retrieve an over-inclusive number of irrelevant documents.  This problem is generally referred to as ‘excessive recall,’ and it is important because this lack of precision increases the number of documents requiring manual review which directly impacts eDiscovery cost.

Waiver & Defensibility

Perhaps the biggest concern with early predictive coding technology is the risk of waiver and concerns about defensibility.  Notably, there have been no known judicial decisions that specifically address the defensibility of these new technology tools even though some in the judiciary, including U.S. Magistrate Judge Andrew Peck, have opined that this kind of technology should be used in certain cases.

The problem is that today’s predictive coding tools are difficult to use, complicated for the average attorney, and the way they work simply isn’t transparent.  All these limitations increase the risk of human error.  Introducing human error increases the risk of overlooking important documents or unwittingly producing privileged documents.  Similarly, it is difficult to defend a technological process that isn’t always clear in an era where many lawyers are still uncomfortable with keyword searches.  In short, using black box technology that is difficult to use and understand is perceived as risky, and many attorneys have taken a wait-and-see approach because they are unwilling to be the guinea pig.

Why is 2012 likely to be the year of predictive coding?

The word transparency may seem like a vague term, but it is the critical element missing from today’s predictive coding technology offerings.  2012 is likely to be the year of predictive coding because improvements in transparency will shine a light into the black box of predictive coding technology that hasn’t existed until now.  In simple terms, increasing transparency will simplify the user experience and improve accuracy which will reduce longstanding concerns about defensibility and privilege waiver.

Ease of Use

First, transparent predictive coding technology will help minimize the risk of human error by incorporating an intuitive user interface into a complicated solution.  New interfaces will include easy-to-use workflow management consoles to guide the reviewer through a step-by-step process for selecting, reviewing, and testing data samples in a way that minimizes guesswork and confusion.  By automating the sampling and testing process, the risk of human error can be minimized which decreases the risk of waiver or discovery sanctions that could result if documents are improperly coded.  Similarly, automated reporting capabilities make it easier for producing parties to evaluate and understand how key decisions were made throughout the process, thereby making it easier for them to defend the reasonableness of their approach.

Intuitive reports also help the producing party measure and evaluate confidence levels throughout the testing process until appropriate confidence levels are achieved.  Since confidence levels can actually be measured as a percentage, attorneys and judges are in a position to negotiate and debate the desired level of confidence for a production set rather than relying exclusively on the representations or decisions of a single party.  This added transparency allows the type of cooperation between parties called for in the Sedona Cooperation Proclamation and gives judges an objective tool for evaluating each party’s behavior.

Accuracy & Efficiency

2012 is also likely to be the year of transparent predictive coding technology because technical limitations that have impacted the accuracy and efficiency of earlier tools will be addressed.  For example, new technology will analyze both document text and metadata to avoid the risk that responsive or privileged documents are overlooked.  Similarly, smart tagging features will enable reviewers to highlight specific language in documents to determine a document’s relevance or non-relevance so that coding predictions will be more accurate and fewer non-relevant documents will be recalled for review.

Conclusion - Transparency Provides Defensibility

The bottom line is that predictive coding technology has not enjoyed widespread adoption in the eDiscovery process due to concerns about simplicity and accuracy that breed larger concerns about defensibility.  Defending the use of black box technology that is difficult to use and understand is a risk that many attorneys simply are not willing to take, and these concerns have deterred widespread adoption of early predictive coding technology tools.  In 2012, next generation transparent predictive coding technology will usher in a new era of computer-assisted document review that is easy to use, more accurate, and easier to defend. Given these exciting technological advancements, I predict that 2012 will not only be the year of the dragon, it will also be the year of predictive coding.

The New Year has now dawned and with it, the certainty that 2012 will bring new developments to the world of eDiscovery.  Last month, we spotlighted some eDiscovery trends for 2012 that we feel certain will occur in the near term.  To understand how these trends will play out, it is instructive to review some of the top eDiscovery cases from 2011.  These decisions provide a roadmap of best practices that the courts promulgated last year.  They also spotlight the expectations that courts will likely have for organizations in 2012 and beyond.

Issuing a Timely and Comprehensive Litigation Hold

Case: E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011)

Summary: The court issued a stiff rebuke against defendant Kolon Industries for failing to issue a timely and proper litigation hold.  That rebuke came in the form of an instruction to the jury that Kolon executives and employees destroyed key evidence after the company’s preservation duty was triggered.  The jury responded by returning a stunning $919 million verdict for DuPont.

The spoliation at issue occurred when several Kolon executives and employees deleted thousands emails and other records relevant to DuPont’s trade secret claims.  The court laid the blame for this destruction on the company’s attorneys and executives, reasoning they could have prevented the spoliation through an effective litigation hold process.  At issue were three hold notices circulated to the key players and data sources.  The notices were all deficient in some manner.  They were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise ameliorate the spoliation.

The Lessons for 2012: The DuPont case underscores the importance of issuing a timely and comprehensive litigation hold notice.  As DuPont teaches, organizations should identify what key players and data sources may have relevant information.  A comprehensive notice should then be prepared to communicate the precise hold instructions in an intelligible fashion.  Finally, the hold should be circulated immediately to prevent data loss.

Organizations should also consider deploying the latest technologies to help effectuate this process.  This includes an eDiscovery platform that enables automated legal hold acknowledgements.  Such technology will allow custodians to be promptly and properly apprised of litigation and thereby retain information that might otherwise have been discarded.

Another Must-Read Case: Haraburda v. Arcelor Mittal U.S.A., Inc. (D. Ind. June 28, 2011)

Suspending Document Retention Policies

Case: Viramontes v. U.S. Bancorp (N.D. Ill. Jan. 27, 2011)

Summary: The defendant bank defeated a sanctions motion because it modified aspects of its email retention policy once it was aware litigation was reasonably foreseeable.  The bank implemented a retention policy that kept emails for 90 days, after which the emails were overwritten and destroyed.  The bank also promulgated a course of action whereby the retention policy would be promptly suspended on the occurrence of litigation or other triggering event.  This way, the bank could establish the reasonableness of its policy in litigation.  Because the bank followed that procedure in good faith, it was protected from court sanctions under the Federal Rules of Civil Procedure 37(e) “safe harbor.”

The Lesson for 2012: As Viramontes shows, an organization can be prepared for eDiscovery disputes by timely suspending aspects of its document retention policies.  By modifying retention policies when so required, an organization can develop a defensible retention procedure and be protected from court sanctions under Rule 37(e).

Coupling those procedures with archiving software will only enhance an organization’s eDiscovery preparations.  Effective archiving software will have a litigation hold mechanism, which enables an organization to suspend automated retention rules.  This will better ensure that data subject to a preservation duty is actually retained.

Another Must-Read Case: Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011)

Managing the Document Collection Process

Case: Northington v. H & M International (N.D.Ill. Jan. 12, 2011)

Summary: The court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data.  The spoliation occurred in large part because legal and IT were not involved in the collection process.  For example, counsel was not actively engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI).  Nor was IT brought into the picture until 15 months after the preservation duty was triggered. By that time, rank and file employees – some of whom were accused by the plaintiff of harassment – stepped into this vacuum and conducted the collection process without meaningful oversight.  Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.

The Lesson for 2012: An organization does not have to suffer the same fate as the company in the Northington case.  It can take charge of its data during litigation through cooperative governance between legal and IT.  After issuing a timely and effective litigation hold, legal should typically involve IT in the collection process.  Legal should rely on IT to help identify all data sources – servers, systems and custodians – that likely contain relevant information.  IT will also be instrumental in preserving and collecting that data for subsequent review and analysis by legal.  By working together in a top-down fashion, organizations can better ensure that their eDiscovery process is defensible and not fatally flawed.

Another Must-Read Case: Green v. Blitz U.S.A., Inc. (E.D. Tex. Mar. 1, 2011)

Using Proportionality to Dictate the Scope of Permissible Discovery

Case: DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011)

The court adopted the new Model Order on E-Discovery in Patent Cases recently promulgated by the U.S. Court of Appeals for the Federal Circuit.  The model order incorporates principles of proportionality to reduce the production of email in patent litigation.  In adopting the order, the court explained that email productions should be scaled back since email is infrequently introduced as evidence at trial.  As a result, email production requests will be restricted to five search terms and may only span a defined set of five custodians.  Furthermore, email discovery in DCG Systems will wait until after the parties complete discovery on the “core documentation” concerning the patent, the accused product and prior art.

The Lesson for 2012: Courts seem to be slowly moving toward a system that incorporates proportionality as the touchstone for eDiscovery.  This is occurring beyond the field of patent litigation, as evidenced by other recent cases.  Even the State of Utah has gotten in on the act, revising its version of Rule 26 to require that all discovery meet the standards of proportionality.  While there are undoubtedly deviations from this trend (e.g., Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011)), the clear lesson is that discovery should comply with the cost cutting mandate of Federal Rule 1.

Another Must-Read Case: Omni Laboratories Inc. v. Eden Energy Ltd [2011] EWHC 2169 (TCC) (29 July 2011)

Leveraging eDiscovery Technologies for Search and Review

Case: Oracle America v. Google (N.D. Ca. Oct. 20, 2011)

The court ordered Google to produce an email that it previously withheld on attorney client privilege grounds.  While the email’s focus on business negotiations vitiated Google’s claim of privilege, that claim was also undermined by Google’s production of eight earlier drafts of the email.  The drafts were produced because they did not contain addressees or the heading “attorney client privilege,” which the sender later inserted into the final email draft.  Because those details were absent from the earlier drafts, Google’s “electronic scanning mechanisms did not catch those drafts before production.”

The Lesson for 2012: Organizations need to leverage next generation, robust technology to support the document production process in discovery.  Tools such as email analytical software, which can isolate drafts and offer to remove them from production, are needed to address complex production issues.  Other technological capabilities, such as Near Duplicate Identification, can also help identify draft materials and marry them up with finals that have been marked as privileged.  Last but not least, technology assisted review has the potential of enabling one lawyer to efficiently complete the work that previously took thousands of hours.  Finding the budget and doing the research to obtain the right tools for the enterprise should be a priority for organizations in 2012.

Another Must-Read Case: J-M Manufacturing v. McDermott, Will & Emery (CA Super. Jun. 2, 2011)

Conclusion

There were any number of other significant cases from 2011 that could have made this list.  We invite you to share your favorites in the comments section or contact us directly with your feedback.

For more on the cases discussed above, watch this video:

The legal battles during the discovery phase of the Oracle v. Google Java licensing and patent infringement complaint are now well documented. Just search for “Lindholm email” and you’ll find pages and pages of opinions and blog posts on the case. Why so much fuss over a piece of email? Well, as Judge Alsup aptly describes, this is the type of smoking gun email that has the potential to “turn the case on its head.”  More importantly, this inadvertent email never needed to happen, if the parties had better leveraged existing eDiscovery technologies.

The eDiscovery battle over admissibility of this email, as well as whether it can be a public record, is natural and to be expected, especially in such a high profile dispute. Google has already made five attempts to either claw back these documents or protect them under seal. Besides the question of whether privilege waiver is in fact granted simply by adding an “Attorney Work Product” annotation to email, which Judge Alsup has eloquently addressed in the filing here, there is another interesting question to be considered. In addition to the two email copies that had the above designation, there were nine other sequential drafts, created within a five minute period. These drafts were generated by the “auto save” capability of the email software, possibly as a way to prevent the author of the email from losing partial work. Don’t we all love that feature, since despite all the technological advances computers crash, networks fail, and software freezes, and in those times we’re thankful that our work was indeed automatically saved? However, if these are indeed present, are these drafts discoverable, especially if they have not been shared with anyone?

Although in this instance the intent of these drafts is made evident by the final email, which included the recipients, none of the nine drafts of the email have a TO:, CC: or BCC: address field filled in. So technically, the drafts in their “pre-final” form were never communicated to anyone else. If so, should they even be considered electronically stored information (ESI) that needs to be produced? Let’s say that these emails were never sent and merely existed as drafts, perhaps capturing a person’s train of thought. Are they discoverable?

Of course, determining whether such partial and non-evidentiary ESI exists among your millions and millions of documents to be examined for production becomes increasingly the purview of powerful search and analysis software. In this instance, Google and their legal team would have been well-served by email analytical software that can isolate drafts and offer them for removal from production. Also, using a capability such as Near Duplicate Identification would have identified these drafts as similar to the final ones that were marked as privileged. After all, if the legal team had known of their existence prior to production, they would not have been surprised by the opposing team producing them as key documents.

I invite your comments, especially on the notion that partially completed drafts are admissible as evidence.

The electronic discovery blogosphere is filled with analysis of the recent opinion by Judge Sandra Beckwith of U.S. District Court for the Southern District of Ohio, on the Moody v. Turner case. What is striking about the case is that it reveals a huge gap in understanding the pitfalls of prolonged discovery disputes in the context of attempts by thought leaders to prevent exactly the issues elicited in this opinion. As the excellent post by Ralph Losey indicates, in this case, it is an affront to have this play out in front of Judge Beckwith, a signatory to The Sedona Conference Cooperation Proclamation.

In reviewing the facts of the case, here are highlights on some of the process missteps:

Lack of Early Data Analysis

It is not obvious to some how important it is to perform an early analysis of the data before agreeing to search  ESI for a certain number of custodians and apply certain keywords. This case illustrates three reasons why early data analysis is critically important .

First, the producing party must identify and communicate the right list of custodians. If there is any change or expansion of scope, that needs to be communicated as well. In this case, the Defense team, at their pre-trial 26(f) conference with the Plaintiffs, agreed to produce ESI for twenty six custodians, but chose to send Preservation Notices to larger number of individuals.  While this act by itself is commendable, the lack of prompt communication to the Plaintiffs is certainly a misstep that the Plaintiff chose to latch on to as incomplete production of ESI.

Second, the producing party must have a handle on scope of searches before committing to “run them”.  In reviewing the document Case: 1:07-cv-00692-SSB Doc #: 43, Exhibit 7, it is apparent that the twenty production requests in that report are not trivial. An early analysis of both the data as well as searches at least on a small sample would have helped the producing party understand the scope and challenges of running those searches.

Third, the producing party must evaluate their collection, search, and production methods to evaluate the feasibility of producing metadata. As evidenced in the Plaintiffs’ motion (Doc-89, Page 19), it is clear that the Defense did not produce TIF images along with searchable text. However as noted in Doc-118, Page 18, footnote 10):

“In any event, parties are generally not required to produce the metadata of their data sets. See Wyeth v. Impax Labs., Inc., No. 06-222, 2006 WL 3091331 at *2… Turner has produced all ESI in TIFF format, except for Excel spreadsheets which were produced in native format given the substantial size of many of the spreadsheets (which, if in TIFF format, may print across hundreds of pages). Judge Hogan therefore rightfully declined to compel Turner to produce any additional metadata.”

This is a fairly common request and  one that the Plaintiffs could have placed in their pre-trial 26(f) conference.

Out of Control Production Requests

In reviewing the aforementioned court document, Doc #: 43, Exhibit 7, one can glean a wealth of information on the nature of searches requested by the Plaintiffs and the responses by the Defense team. The immediate problem evident in these requests is an issue raised by the Defense team – that the search requests are overly broad. Some of the search terms are “plan”, “method”, “rate” and “account”, which are certain to hit a very large number of documents. See below for one of the requests.

Production 1-Item 2: All documents other than emails that can be electronically or digitally searched as containing one or more terms that concern the Plan in any way or cash balance pension plans and contain the word “accrual,” “benefit,”, “benefit accrual,” “accrual of benefit”, “accrual methods,” … “calculate”, “calculation”.

This goes on and on, for about eighteen pages. Combined, the twenty production requests would clearly hit almost every collected document (a total of 118GB of documents), thus making a follow-on privilege or confidentiality review prohibitively expensive. It is the lack of specificity in these searches that makes the discovery request overly broad. On the other hand, the response from Defense appears to be also poorly constructed. In their response, what we see is the same boiler-plate text, which didn’t escape the notice of the Plaintiffs and the court.

“Defendants object to this Request because it is overly broad, unduly burdensome, seeks documents that are neither relevant nor likely to lead to the discovery of admissible documents and (because Plaintiffs define “documents” to include electronic or computerized data compilations) seeks electronic documents that are not reasonably accessible due to undue burden and/or cost. Defendants further object to this Request because it implicates documents protected by the attorney-client and/or work-product privilege and any such documents will be withheld from production”

What would have helped the Defense’s case would be actual data supporting their claims. For example, if the defendants were to tabulate that words such as “plan” and “benefit” and provide actual document and/or hit counts, it would have bolstered their claim. As expected, this caused the Plaintiffs to submit a further filing, Doc-89 with a host of complaints, chief among them:

Defendants reported only (1) the total number of unique documents captured by the search of 17 terms and (2) the number of documents that contained the term “cash balance” but none of the Plaintiffs’ other terms. See Doc. 77-10 at 2.

Furthermore, the Plaintiffs appear to be on the right track, recommending:

On October 14, Plaintiffs wrote to Defendants and proposed an “iterative search process” to decide on a final set of search terms.

It seems clear in the on-going discovery disputes, an iterative search process was perceived as contrary to zealous advocacy of their client’s positions and not as a path to resolving further disputes, much as the Cooperation Proclamation suggests. In this context, engaging in a search expert is essential – someone who can modify the search to include more restrictive criteria to limit your search results. Why bother running an open-ended search and produce 29.4GB of useless junk, when you can combine these terms with Boolean, proximity, and other searches? The types of searches, and what each can offer, is a topic that the members of EDRM tackled in formulating their EDRM Search Guide, which is a must-read for anyone attempting to construct e-discovery searches.

Proportionality Arguments Without Strong Basis

An important point to note is that any discovery request that uses inefficient processes and inappropriate technologies will certainly result in undue burdens and cost.  It appears that the Defense team did not offer proper cost estimates (arguments put forth in Doc-77-10 notwithstanding), and just pushed an undue burden/cost argument with the hope that the courts would absolve them of discovery obligations. At the same time, the Plaintiffs did seem to have over-reached a bit on extending their discovery disputes with the hope of reaching a favorable outcome. Two examples of such attempts are:

1. Upon Defense producing the documents (Doc-118),

Turner has produced every responsive, non-privileged document obtained through the email ESI searches that related to the Plan; these comprise 4.1 GB, or more than 40,708 pages of documents.

The Plaintiffs counter with:

“Plaintiffs maintain that Turner should be compelled to produce the metadata for the email ESI it has produced because otherwise they allegedly “cannot know whether Defendants have searched all 33 custodians’ email files” and “cannot confirm whether any email files were electronic in origin (rather than printouts of emails) or determine whose files they came from.”

As noted earlier, request for metadata and the feasibility of producing it must be negotiated specifically in the 26(f) conference.

1. The attempt of the Plaintiffs to expand discovery, to compel any and every third party, including Defense’s former law firms, as well as inspect “shared network drives”, “non-shared drives” etc.

“Judge Hogan recognized that Turner should not be compelled to probe through the recesses of its internal electronic systems for even more ESI on top of the 47,000-plus hard copy documents and the 40,000-plus pages of ESI it has produced – because those additional searches are not likely to lead to the discovery of any evidence relevant to plaintiffs’ claims. Judge Hogan was presented with the gory history of Turner’s efforts to search through “shared network drives” and “non-shared drives,” emails and backups. He found these efforts to be sufficient, and rightly rejected plaintiffs’ demand for additional ESI.”

One can see that Plaintiff’s attempt to drag the electronic discovery efforts into an endless battle was counterproductive.

Final Takeaway

The Sedona Conference Cooperation Proclamation rightfully recommends “Jointly developing automated search and retrieval methodologies to cull relevant information”. As costs for getting to the facts escalate, a comprehensive strategy that uses the best processes, the best technology, and a commitment to the Cooperation Proclamation is essential for the legal system to deliver what people expect – justice based on facts. Gamesmanship as evidenced in Moody v. Turner is detrimental to this cause.

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 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 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.”

In Baxter Healthcare 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.

In Vioxx 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:

“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.