Special Master Considers Whether Attachments to Emails Must be Produced

Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011)

In this case, the Special Master considered the question of whether, under the particular circumstances of this case, emails and their attachments should be considered singular or separate entities and thus, whether they must be produced together. While no definitive answer emerged, the Special Master’s consideration of the issues and resulting recommendation are illuminating, and were ultimately adopted by District Court Judge Shira Scheindlin.

Summarizing broadly, defendants sought to compel SEI Investments (“SEI”) to produce the attachments to many emails previously produced without them or to provide an explanation for why the attachments were being withheld. SEI responded that it had produced all relevant, non-privileged, responsive documents and that the unproduced attachments were not responsive primarily because they were outside of the applicable date range.

Seeking to establish the relevant legal standard, the Special Master consulted a diversity of sources, but none provided a definitive answer. Rather, the sources revealed conflicting treatment and considerations. In favor of producing together, for example, the Special Master noted that “many” cases imply such an obligation, but acknowledged that most dealt with format of production issues where relevance was presumed. The Special Master also considered Evidence Rule 106 and the “completeness” standard (leading to the conclusion that if something is attached, it is likely relevant to the context of the communication); Rule 34’s allowance for producing things as kept in the usual course of business and its appealing application to emails and attachments; and the indications of “anecdotal” and secondary sources that production together was “the prevailing practice.” Against producing together, the Special Master cited the practice of treating emails and attachments separately for purposes of privilege determinations. Further, the Special Master indicated that "conceptually" there was "a good basis for considering each item . . . seperately," and reasoned that “[r]elevance is the sine qua non of discovery” such that “if information is not relevant, it is not discoverable under plain text of the Rule.” (Citing Rule 26(b)(1))

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Source: ediscoverylaw.com