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))
Having reviewed such disparate authorities, the Special Master concluded that the “best practice” was for parties to discuss and settle issues surrounding emails and attachments (production, logging) in advance.
In the present case, the Special Master found that it was unclear why the attachments had not been produced, questioning whether the emails had been collected without them, or whether the attachments had been reviewed and found to be not responsive. Further, the Special Master essentially rejected the date range advocated by SEI, noting that SEI had previously agreed to produce documents outside of that range in response to other documents requests (indeed, many documents outside of the date range had been produced), and found that defendants’ motion to compel was not a mere “fishing expedition” where evidence suggested that numerous responsive attachments may have been withheld.
Regarding the appropriate solution, the Special Master found that it would be “patently unfair” to require the defendants to identify all of the emails that were missing attachments for purposes of further productions. However, the Special Master also found that the burden of requiring SEI to produce all non-privileged attachments that “were attached at some point in time to relevant e-mails” “may not be justified by the burden and expense.”
Accordingly, “in order to fully understand the nature and scope of missing e-mail attachments and to move forward with production, and in light of the unique relationship of attachments to e-mails that support an inference of contextual relevance–or where production of the attachments may be required for fairness or completeness,” the Special Master made the following recommendations, which were adopted by District Court Judge Shira Scheindlin:
a. Within ten (10) days of the entry of the Order relating to this Report and Recommendation, SEI be compelled to produce the non-privileged attachments to the 126 e-mails identified by Defendants in their May 17, 2011 letter and their July 12, 2011 Submission in support of the present Motion that can be located and produced without undue burden or expense;
b. Within ten (10) days of the entry of the Order relating to this Report and Recommendation, SEI be compelled to: (i) identify–by Doc-id/or Bates number of the parent e-mail and the non-produced attachment(s)–all e-mail attachments that were reviewed for relevance as part of the e-mail "family" and were separated and withheld from production on the ground that the attachment was not relevant to the extent such information is readily available, and (ii) provide such identification (by list or as otherwise agreed upon) to Defendants;
c. If SEI contends that it cannot (a) locate and produce one or more of the attachments to the 126 e-mails identified by Defendants without undue burden or expense, and/or (b) identify’ one or more withheld attachments with the document identification and relationship information required above because the information is not readily available, then SEI will provide a detailed, written explanation of these burdens, expenses and unavailability of information to Defendants and the Special Master within ten (10) days of the entry of the Order relating to this Report and Recommendation; and that
d. Defendants be allowed to move for the production of additional non-privileged attachments to relevant e-mails that have not been produced in this case. Any such motion must be predicated on a demonstration that either (a) the newly-produced email attachments were relevant and reveal that a meaningful percentage of SEI’s relevance determinations were erroneous as to the subset of 126 e-mails and attachments and thus SEI’s remaining relevance determinations with respect to other withheld attachments are not reliable; or (b) SEI’s explanation for why such nonproduced, non-privileged attachments to produced relevant e-mails cannot be located or produced without undue burden or cost is inadequate and should not preclude further efforts to identify, retrieve and produce such attachments. The Parties must meaningfully meet and confer in advance of filing any such motion.
Finally, the Special Master further recommends that all Parties be directed to meet and confer within ten (10) days of the entry of the Order relating to this Report and Recommendation to address: (a) whether any Parties have been withholding attachments to e-mails from production on the basis of relevance determinations; (b) whether the Parties are separately identifying e-mails and attachments on privilege logs; (c) the format of the production or re-production of e-mails and attachments by SEI; and (d) the format in which SEI will provide any list of e-mail attachments that were reviewed for relevance and were withheld from production on the ground that the attachment was not relevant.