Do you have to produce emails with their attachments?

It's standard practice in electronic discovery to produce discoverable email messages with their attachments. Federal Rule of Evidence 106 encourages this practice, as it's the basis in federal evidence law for the 'rule of completeness'. FRE 106 states that, "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time." The production of document families in complete form is also encouraged by Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) which specifies that, "A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.", implying both that emails needs to be produced with their attachments, and that they be sorted into different subject areas.

One of the leading cases on this issue is, Abu Dhabi Commercial Bank v. Morgan Stanley & co., Inc., 1:08-cv-07508-SAS-DCF (S.D.N.Y. Aug. 18, 2011). In this case three emails were produced without attachments, that were not included on the party's privilege log. The court in this case found that while there is not an 'ironcald' rule requiring attachments to be produced with parent emails it is the 'prevailing practice'. The special master, Jonathan Redgrave, who issued the 'Report and Recommendation on the Defendants' Motion to Compel SEI Investments Company to Procduce "Missing" E-Mail Attachments', stated that it is best practice for parties to discuss the production of email attachments prior to production.

In issuing his decision, Redgrave noted that attachments were missing in the production from more than 100 emails, and that the plaintiffs didn't indicate that emails had been collected from repositories where they had already been disassociated from their attachments - something the court viewed as a legitimate excuse. The court declined to find that the motion to compel was a 'fishing expedition'. It order SEI to produce the emails with their attachments, but also said that if the attachments could not be located without 'undue burden or expense' the plaintiffs could provide a detailed explanation instead.

The court then ordered the parties to meet and confer within 10 days in order to address whether the plaintiffs withheld any attachments as being irrelevant; whether privilege logs tracked emails and their attachments separately; and also to agree on the format of the production for both emails and attachments.

Electronic Discovery Institute Course - Class 8 - Intro to Information Technology - Communications

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 10, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

The course I took tonight concerns communications in information technology. The course is taught by Patrick Cunningham, a senior counsel for information governance at Motorola; Catherine Muir, the former counsel responsible for electronic discovery and data security at Sprint Nextel; and Eric Lieber, a counsel responsible for electronic discovery for Toyota's division in the United States.

Cunningham began by discussing data sources. When a legal hold is received it's necessary to distinguish between various types of data - structured data in databases, and unstructured data. Most of time will be spent on unstructured data. He noted a trend toward dealing with unstructured data. It's not necessary to access data on lots of different devices because of the use of the cloud to store data, but there are still a lot of custodians. Motorola rarely collects voicemail or mobile phone data.

Lieber warned loose files make it necessary for the litigation hold to be worded in such a fashion that users are clear on what to preserve.

Cunningham discussed BYOD policies. Most email systems are cloud enabled. Whether or not an employer can require an employee to give them their smartphone device is a difficult legal issue. He speculated that there may be increasing resistance on the part of employees to granting access to their devices. Companies are also reluctant to give their employees $500 devices to do their work on.

Muir noted that information governance policies if followed and enforced can make a big difference in international companies, enabling uniform collection plans to be implemented in different offices. Targeted collections can reduce the cost of discovery.

Cunningham noted that while an information retention policy is a good base, it may also be necessary to review a company's training for employees on how to deal with data files. There is a cloud first, wireless first, mobile first approach at Motorola. Document management systems are being supplanted by cloud environments like Office 365 which allow people to work wherever they are.

LIeber said users are generating a lot of Word and Excel files that are saved on a file share or in a cloud based storage system like Box.com.

Cunningham said that ideally a company would not have to try to prevent local storage. Ubiquitous online storage helps discourage the storage of data on local drives.

Lieber noted that some companies will use departmental file shares - limited shared data inside specific divisions.

Muir noted that decrypting files can be very costly. If an employee has left the company there may be no way to get their password.

Instant messaging is an example of a collaboration application. The more sophisticated IM tools like Google Hangouts can provide voice and video communication. The systems will log phone and video chats, but not record the actual communications. Meetings that used to be a telephone conference calls are now Google Hangouts. The system has revolutionized how people communicate with one another.

Different versions of a document are no longer commonly stored, because users can collaborate simultaneously on a single file.

Requests for text messages are not necessarily going to yield results, because many users make use of other apps to communicate. Even gaming apps allow people to communicate with one another, and archiving of messages is rare.

Lieber noted that different companies have different ways of communicating. Rather than just relying on email, people work together in collaborative tools, like SharePoint.

Muir noted that mobile employees will text frequently. Texts are harder to process and de-duplication is usually not possible.

Many corporations have a social media group to simply monitor communications on sites like Facebook and Twitter. These alternative methods of communications don't make it easy to preserve data. While Craig Ball has explained how to archive Facebook data, other sites don't make the process so easy.

Social media usage is driven by the nature of the case. Voicemails can be converted to textual email messages, but voice recognition technology is not reliable. In the financial industry phone calls are very often recorded.

Cunningham said that at his company, standard desk phones have been removed. Phones service is part of the computer account and is available everywhere. Voicemails are not saved as attachments (in .wav or another format) to attachments. They are instead increasingly stored via links in the could. This makes is less likely for voicemails to be archived by individual users. It has become increasingly easy to get voicemails, and easier to access them from where they are stored.

Cloud data poses on problem for the European Union. European countries don't want data stored on American servers. Locating where Google stores data is very difficult. It segments data in 64MB blocks and distributes it around its data centers, which are in different locations. Forensic images can no longer be generated on what's stored on servers.

Cunningham was asked pursuant to a federal investigation how email traveled between two employees who were both working in the same office. The data actually went from one user's Outlook client in a Illinois office to a data center in Delaware, was processed in an Exchange server, and then sent to another server was finally delivered back to the office in Illinois. This was grounds for interstate wire fraud. Transferring data through the cloud involves a more complex process that makes it hard to prove how email is transferred between users.

Physical ownership of data may be difficult to establish. Different cloud systems may have data hosted in other locations and then not track where the other parties transfer the data to.

Electronic Discovery Institute Course - Class 7 - Why eDiscovery?

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this course on April 21, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

The EDI assembled an all-star panel for its courses which includes federal judges, Xavier Rodriguez of the Western District of Texas; Paul Grimm of the District of Maryland; James Francis of the Southern District of New York; Elizabeth LaPorte of the Northern District of California; Craig Shaffer of the District of Colorado; Andrew Peck for the Southern District of New York; and Patrick Oot, the S.EC.'s former senior special counsel for electronic discovery.

The course entitled, "Why eDiscovery?" is really just an introduction to the EDI's certification program, which emphasizes the growth and ubiquity of electronic data; that knowledge of eDiscovery processes and law is an essential part of the competent practice of law; and that there are great opportunities for attorneys who excel in eDiscovery. Clips are given of both the judges listed above and other course teachers being interviewed on the general importance of electronic discovery.

Oot is the editor-in-chief of the EDI's distance learning initiative. He stressed the importance of of discovery as the most expensive component of litigation.

Judge Francis noted that the explosion of data has become so great that judges and lawyers won't be able to litigate without understanding the processes behind the creation and collection of data. It's essential for lawyers to understand technology in order to be able to do their jobs effectively.

Judge Grimm said that law students are often more accustomed to the use of digital media and the issues involving it than judges and senior attorneys are.

Reviewing documents should not be regarded as grunt work, because all of the evidence is to be found in the documents. The production of data has become the most expensive part of resolving legal disputes. Being efficient at this process is an important part of becoming an attorney valued by a client.

Judge LaPorte noted the importance of managing a case with the goal of making litigation just, speedy and inexpensive. These goals involve trade-offs with one another.

Electronic discovery relates to everything that a lawyer does - whether it's transactional or litigation work. It's not possible to be a competent lawyer without staying abreast of both technology and e-discovery law.

Judge Peck remarked that attorneys need to know about electronic information, and a young lawyer's familiarity with digital media doesn't mean they don't need to be taught about electronic discovery.

The Model of Professional Conduct, Rule 1.6 was modified to require attorneys to take reasonable steps to prevent the inadvertent or unauthorized disclosure of a client's information. This obligation is particularly challenging given the ease of duplicating and transferring digital data.

Case law is clear that lawyers are obligated to have a basic understanding of electronic discovery, both concerning proper adherence to document retention policies and having an understanding of how data is stored and produced. It is not sufficient to say that one allows the IT people to handle these problems.

It used to be uncommon to discuss the discovery process in law school, even though young lawyers would often be thrown directly into conducting discovery. The EDI aims to be front and center in the effort to prepare lawyers for discovery in the new digital world.