Written by: JP Midgley, CEO of Avalon Document Services

It’s a love story old as time: once emails and attachments are joined together, are they then connected by the bonds of… umm… data-mony until crash do they part?

A Special Master considered precisely (or, really, close enough) this question in Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011).  Under the precise circumstances of this case’s email/attachment marriage, a Special Master analyzed whether emails and their attachments should be considered married (one entity) or separated (two) and, as a result, how they should be produced – formally as one, or not.

In a very, very basic summary (i.e. don’t quote this to the judge), defendants sought to compel production of numerous email attachments when the underlying emails had already been turned over to them.  If attachments were being withheld, defendants demanded to know why.  The responding party, as so many do, claimed it had already produced all relevant, non-privileged, responsive documents and that any attachments that were not produced were not responsive based on a date parameter.

To come to the best determination, the Special Master consulted a number of sources – which apparently resulted in almost as many possible resolutions as sources consulted.  When faced with such competing possibilities, what is a Special Master to do?  Make recommendations to the Judge, and see what she thinks, of course.  Luckily in this case, District Court Judge Shira Scheindlin adopted the Special Master’s recommendations.  The instructions were:

1. Within ten days of entry of the Order, the responding party was to produce the non-privileged attachments (specifically to over 100 e-mails identified by defendants in their submissions) that could be located and produced without undue burden or expense;
2. Also within ten days of entry of the Order the responding party was to identify the parent e-mail and the non-produced attachments that were withheld for relevance, and provide this identification to defendants;
3. If the responding party claimed that it could not locate/produce one or more of the attachments to the over 100 e-mails identified by defendants without undue burden or expense, and/or could not identify one or more withheld attachments because the information was not readily available, then the responding party was to provide a detailed, written explanation of the burdens, expenses, and unavailability of information to defendants and the Special Master within that same ten day period; and
4. Defendants were permitted to move for the production of additional non-privileged attachments to relevant e-mails that had not been produced in this case.  In order to do so, the defendants had to demonstrate either (a) the newly-produced email attachments were relevant and showed that a significant percentage of respondent’s relevance determinations were erroneous regarding the 100+ e-mails and attachments and, as such, their remaining relevance determinations as to other withheld attachments were not reliable; (b) respondent’s explanation for why the non-produced, non-privileged attachments to the produced (and relevant) e-mails could not be located/produced without undue burden/cost was inadequate and shouldn’t preclude further efforts to identify/retrieve/produce the attachments. The Court also threw in a third requirement: (c) that the parties meaningfully meet and confer in advance of the defendants’ filing of such a motion.

Additionally, they were instructed to kiss and make up.  Okay, not really.  But, the Special Master did recommend that the parties meet and confer to address a few issues, like (i) whether they’d been withholding attachments to e-mails from production on the basis of relevance, (ii) whether they were separately identifying e-mails and attachments on privilege logs, (iii) the format of the production of e-mails and attachments, and (iv) the format of the responding party’s list of e-mail attachments that were reviewed for relevance and withheld from production.

So, betrothed or not?  This case does not make that clear.  But what is clear is that a Court is going to make the parties – mostly the responding party - do a lot of the leg work when email attachments are not automatically produced with their beloved email counterpart.

If you liked this blog you might be interested in reading: Employee Emails Used for Business Purposes are Off-Limits (in this case at least)

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