Court Remands to Magistrate Judge Question of Whether Privileged Emails Printed and Produced by E-Discovery Vendor Should Be Returned
Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007 (Unpublished)
In this case, plaintiff claimed that it inadvertently produced over 500 privileged emails that had been deleted from a single Lotus Notes DVD, but were nonetheless printed and produced by its outside e-discovery vendor. According to plaintiff, the privileged emails (and other non-responsive emails) had been segregated into subfolders, and these subfolders had been deleted prior to the submission of the DVD to a vendor for processing. Plaintiff blamed this inadvertent production on the fact that in the Lotus Notes application (as distinguished from Microsoft Outlook and other email platforms), even though emails had been moved and segregated into separately labeled subfolders, and said folders subsequently deleted, a copy of these emails still remained in the larger folder structure. As such, when Applied Discovery converted the emails from their native form into single page image files, the emails which plaintiff had allegedly segregated into a “privileged” subfolder, and subsequently deleted, actually remained in the larger folder structure, and were thus produced to the defendant.