In a recent order, Judge Shira A. Scheindlin of the Southern District of New York endorsed the Report and Recommendation (“R&R”) of Special Master Jonathan Redgrave, a founding Chair of The Sedona Conference Working Group on Electronic Document Retention and Production and well-respected authority on e-discovery matters. Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 3734236 (S.D.N.Y. Aug. 24, 2011). The R&R dealt directly with the issue of whether emails must be produced together with all attachments, even when some of the attachments are non-responsive. Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 3738979, at *2, *4-5 (S.D.N.Y. Aug. 18, 2011). This issue frequently arises in complex litigation. In many cases, the decision to deem attachments to be a portion of a single email “family” may have a significant impact upon the cost and duration of the document review process. While Redgrave’s R&R does not declare a definitive rule for production of non-responsive email attachments, it does provide helpful guidance to litigants who undoubtedly will confront this problem.
In his analysis, Special Master Redgrave notes that there is no United States jurisprudence on this point (in a footnote, he cites a single case from New Zealand), and that Federal Rule of Civil Procedure (“F.R.C.P.”) 26, F.R.C.P. 34, Federal Rule of Evidence 106, and S.D.N.Y. Local Rule 26.3 provide conflicting guidance. He concludes that “anecdotal evidence and secondary materials indicate that the prevailing practice, absent party agreement or court order to the contrary, is for parties to produce any non-privileged attachment to an email if the email is determined to be relevant, and to produce the email if any of the attachments are determined to be relevant.” Id. at *5. He further observes this “does not mean that there is an ironclad legal standard but this existing pattern of practice serves as a helpful guide for related discovery disputes.” Id.
In the case before Special Master Redgrave, it was unclear why certain attachments had not been produced and whether the cause of the omission was a misunderstanding about the relevant time period; as such, he issued specific instructions relating to the production of a number of the attachments, preparation of a log, and a mandatory meet-and-confer session to address issues specific to the R&R. Those directions seem limited to the specific facts and circumstances of the case, but the following point would seemingly apply to any case: “A review of the legal authorities suggests that the best practice is for parties to discuss the production and logging of emails and attachments as singular or separate items in advance of production and to reach agreement as to the treatment of emails and attachments for responsiveness and for privilege purposes.” Id. at *5. This urging for and promotion of cooperation and coordination among parties is a common theme running through e-discovery opinions.
Given the dearth of guidance on this issue and that this R&R was endorsed by Judge Scheindlin, the decision is bound to be widely noticed. Parties therefore may want to consider the approach advanced in Abu Dhabi or, if that approach is not desirable in a specific case, to discuss alternative approaches with opposing counsel during the meet-and-confer stage. Alternatively, if parties decide to withhold attachments without alerting an adversary, it seems advisable to be prepared to provide the court with an explanation for the manner of production and to have a plan for efficiently revisiting the attachments that have been separately withheld should the court require it.