Electronic Discovery Law
Court Denies Request for In Camera Review of Email to Evaluate Relevance
Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006)
Plaintiff asserted claims of sexual harassment, retaliation, violation of the Electronic Communications Privacy Act, and computer trespassing against her former employer and supervisor. Among other things, plaintiff alleged that her supervisor "hacked" into her electronic mail account and forwarded to himself approximately 400 of her emails.
Plaintiff had originally opened her email account with AOL in 1999, before she was hired by the defendant. Sometime after she was hired, her employer began paying the cost of the account, apparently because it served as a back-up for work-related communications when defendant's own email system was not working.
In discovery, the defendants demanded disclosure of all emails sent to or from the plaintiff's AOL account during the time period defendants paid for it. The plaintiff objected on several grounds, but also represented that she was in the process of producing all of the responsive documents, subject to her objections. After negotiations failed to resolve the dispute, the defendants brought the instant motion.
Regardless of the ownership of the account, the defendants argued that they were entitled to every email transmitted to or from plaintiff's AOL account during the period the defendants paid for the account because they were relevant to the plaintiff's computer hacking claims, her sexual harassment claims, and her claims of resulting physical and emotional distress. Defendants contended that, at the least, the emails should be reviewed by the Court in camera, since "an interested party to a litigation cannot be the final arbiter of relevance" and cannot "withhold documents from discovery ab initio based on his or her unilateral, unreviewed determination." The defendants stated they were not seeking privileged documents as long as they were properly identified on a privilege log.
Plaintiff's counsel disputed the defendants' claims of relevance, noting that plaintiff had already produced emails that were responsive to any of defendants' document requests. Plaintiff also rejected defendants' contention that there was any basis for review of the emails by the court or any third party.
Magistrate Judge Francis found that the 400 or so "hacked" emails were plainly relevant to her claims of illegal interception of electronic communications. Although plaintiff had produced each such email, she had redacted the body of the communication, leaving only the transmission history. The court found that plaintiff had taken "too narrow a view of relevance," finding that the content of the information obtained by hacking would be relevant to the determination of both actual and punitive damages. "On one hand, if the subject matter of a communication is innocuous and the disclosure of it is unlikely to cause embarrassment to the victim, then the finder of fact might be justified in assessing only modest damages. On the other hand, if the communication concerns a highly personal matter, a more significant award could be warranted." On this basis, the court ordered plaintiff to produce the intercepted emails without redactions.
The court ruled that the emails which were not intercepted did not need to be produced, since they were not relevant to the hacking claim or the claims of sexual harassment, and were not sufficiently relevant to the claims of physical and emotional distress to warrant their production.
Finally, the court rejected the defendants' objection to the fact that it was plaintiff's counsel who had made the relevance determination and had withheld certain documents on that basis. The court agreed that an interested party cannot be the "final arbiter" of relevance, but stated that "counsel for the producing party is the judge of relevance in the first instance." It continued:
Discovery in our adversarial system is based on a good faith response to demands for production by an attorney constrained by the Federal Rules and by ethical obligations. Where the parties disagree as to the contours of relevance in connection with particular discovery demands, they present their dispute to the court, as the parties have done here. When a party can demonstrate that an adversary may be wrongfully withholding relevant information, it can seek relief; in this case the defendants have made no such showing.
The defendants maintain that, at a minimum, I should review the additional e-mails in camera to evaluate their relevance. But "[s]uch review is ordinarily utilized only when necessary to resolve disputes concerning privilege; it is rarely used to determine relevance." Collens v. City of New York, No. 03 Civ. 4477, 2004 WL 1395228, at *2 (S.D.N.Y. June 22, 2004). Indeed, in camera inspection is the exception, rather than the rule, and the defendants have provided no basis to believe that plaintiff's counsel have not honestly and accurately performed the review function in this case. See id.; Germosen v. Cox, No. 98 Civ. 1294, 1999 WL 1021599, at *19 (S.D.N.Y. Nov. 9, 1999); Local 32B-32J, Service Employees International Union v. General Services Administration, 97 Civ. 8509, 1998 WL 726000, at *11 (S.D.N.Y. Oct. 15, 1998). Accordingly, the non-intercepted e-mails need not be submitted to the Court.
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