In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669 (D. Kan. 2005)
In this multidistrict litigation consisting of numerous putative class actions against AT&T Corporation and Sprint Communications Company, plaintiffs moved to compel AT&T to produce documents that had been withheld on a claim of attorney/client privilege. The motion was referred to a magistrate judge, who ordered AT&T to produce copies of the 35 documents at issue for an in camera review, and provide more information with regard to those persons sending and receiving, including receipt of courtesy copies, the emails listed on the privilege log.
After conducting an extensive review of the materials, the magistrate issued an order noting several deficiencies in the privilege log, “observing that it was unclear whether the deficiencies were the result of ‘a litigation tactic, lax case management, or some other reason.'” AT&T was ordered to show cause why the court should not find that, with respect to all of the messages in the subject email “strands” (except for the 35 that were specifically listed on the privilege log), and with respect to the documents which contain names or groups that were not identified by AT&T, any claims of privilege or protection have been waived. The court also ordered AT&T to provide a more complete privilege log as to the withheld documents at issue.
In response, AT&T grouped the 131 emails contained within the 35 strands into five separate categories: (1) 35 emails that are the first or only email in a strand; (2) 17 emails that are duplicates of one of the 35 emails in category one; (3) 26 emails that appear on other privilege logs where they were the first or only email in a strand; (4) 29 emails that had not been separately listed on any previous AT&T privilege log; and (5) 24 emails for which AT&T conceded, if analyzed as separate, freestanding emails, cannot properly be defended as to claims of privilege. AT&T stated it would withdraw its objection and produce the documents in the last category.
The court first addressed whether AT&T had waived any privilege to the 29 emails in Category Four. AT&T argued that the court should find no waiver because “AT&T operated under the good faith belief that an e-mail strand on a topic, regardless of how many individual e-mails are involved, constitutes a single document requiring only a single privilege log entry.” The court disagreed with AT&T on the privilege log issue, but concluded that a waiver of privilege should not be declared. The court found that AT&T had construed the authorities it cited too broadly and loosely, and that none of them provided any in-depth analysis of the issue. It continued:
The court concurs with AT&T to the extent it points out that electronically discovery is a rapidly evolving are in which litigants (and judges) often have little or conflicting guidance. And this is certainly the case with regard to the specific issue now before the court. But with no cases directly on point, the court finds that AT&T’s decision to treat each e-mail strand on a topic as a single privilege log entry, although arguably reasonable, was very risky.
Nevertheless, under the unique circumstances of the litigation, the court was unwilling to find a waiver as to the 29 emails in Category Four.
The court next addressed the specific procedures for protecting assertions of privilege for email strands, and set out the particular types of information a privilege log must contain:
- A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;
- The date upon which the document was prepared;
- The date of the document (if different from # 2);
- The identity of the person(s) who prepared the document;
- The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;”
- The purpose of preparing the document, including an evidentiary showing, based on competent evidence, “supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;” a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, “that the documents do not contain or incorporate non-privileged underlying facts;”
- The number of pages of the document;
- The party’s basis “for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and
- Any other pertinent information necessary to establish the elements of each asserted privilege.”
The magistrate flatly rejected AT&T’s position that individual emails within a strand should not be separated from one another when evaluating a privilege claim, citing three basic reasons: (1) the authorities offered by AT&T were unpersuasive; (2) the well-established case law regarding privileges and privilege logs provide better guidance; and (3) the obvious and unavoidable byproduct of the rule advanced by AT&T would be “stealth claims of privilege which, by their very nature, could never be the subject of a meaningful challenge by opposing counsel or actual scrutiny by a judge.”
The court further criticized AT&T’s argument that “an e-mail strand is akin to minutes of a meeting or a transcript of a conversation and, therefore, the individual e-mails within a strand should not be separated from one another when evaluating a privilege claim.” It stated that many, if not most, email strands present unique issues which usually do not appear in minutes or transcripts:
First, email strands may span several days, which in an of itself makes them quite different from a meeting or a conversation. Second, the individuals receiving or being copied on the e-mails within a strand – may and usually do – vary; in some instances, certain individuals may receive only a portion of the strand while others may receive the entire strand, and in other instances an e-mail may be sent or copied to an individual or group of individuals who are not part of the attorney-client relationship, thus waiving the privilege. Third, one e-mail within a strand in which counsel are senders, recipients, or being copied may contain entirely factual and thus non-privileged information, while another e-mail within the same strand may quite clearly seek or render legal advice.
The magistrate further explained:
The undersigned magistrate judge is only five years removed from private practice. He is acutely sensitive to the fact that, as a practical matter, requiring each e-mail within a strand to be listed separately on a privilege log is a laborious, time-intensive task for counsel. And, of course, that task adds considerable expense for the clients involved; even for very well-financed corporate defendants such as those in the case at bar, this is a very significant drawback to modern commercial litigation. But the court finds that adherence to such a procedure is essential to ensuring that privilege is asserted only where necessary to achieve its purpose, e.g., in the case of the attorney-client privilege, protecting disclosures made to obtain legal advice which might not have been made absent the existence of the privilege. In any event, the court strongly encourages counsel, in the preparation of future privilege logs, to list each e-mail within a strand as a separate entry. Otherwise, the client may suffer a waiver of the attorney-client privilege or work product protection (and the lawyer may later draw a claim from the client).
The court went on to evaluate each of the remaining emails on the privilege log, sustaining or overruling AT&T’s privilege objections.