Special Master Considers Whether Attachments to Emails must be Produced Together

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From the KL Gates Electronic Discovery Law Case Summaries.


This is an analysis of the following case:
Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011)

A special master was asked to address the issue of whether emails and attachments must be produced together as one document (essentially preserving the family/parent-child relationship of the email and the accompanying attachments).

The special master provided some detailed guidelines, after an analysis of the situation, and tailored his recommendations to fit the unique circumstances of the case at hand.  The analysis provided included the following insights, "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 . . . separately," 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."

Ultimately the special master's findings were upheld by Judge Shira Scheindlin, he.