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Privilege Logs: How to Effectively and Efficiently List Single “E-mails” That Includes Earlier E-mail Text
By Sue Seeley,
Manager for Legal Services,IE Discovery, Inc.
During the past fifteen years, e-mail has transformed how we work, emerging from relative obscurity to become the way most of us communicate on the job. Unfortunately for attorneys and litigation support professionals, case law has not kept pace with this change. Rulings from Federal District Courts raise the issue of how to list a privileged e-mail on a privilege log when that e-mail is a reply or a forward of an earlier e-mail and the text of an earlier e-mail is included in the latest e-mail.
To aid our analysis let us call the e-mail that includes the text of an earlier e-mail the “embedding e-mail” and let’s refer to the earlier e-mail as the “embedded e-mail.” Can the privilege log have only one entry containing data pertaining to only the most recent sender and recipients of the embedding e-mail or does there need to be an entry for not only the embedding e-mail but also an entry for each of the earlier embedded e-mails? The answer may require that much more time and expense be spent preparing privilege logs. Only a few courts have addressed how to capture embedding e-mails on privilege logs, and the few that have spoken have been inconsistent, and have unfortunately chosen terminology that adds to the confusion.
Case law continues to evolve regarding how electronically stored information (ESI) is identified, preserved, collected, processed, reviews and produced. Findings on accessibility, admissibility, chain of custody, cost sharing and shifting, data production, good faith, legal hold, metadata, privilege, 26(f) meet and confer conferences, spoliation impact the IT, legal and business processes of law firms and their clients.
Under the “two-tier rule” established under FRCP 26(b)(2)(B), parties need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost; on motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.