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Northern District of Illinois Won't Categorize Withheld Email Attachments

The Tip of the Night for April 25, 2018, discussed an order in In re Broiler Chicken Antitrust Litig., No.16 C 8637 (N.D. Ill. Jan. 3, 2018), which gave detailed instructions on how to perform technology assisted review. This Tuesday, Magistrate Judge Gilbert issued another order in the same case denying the Plaintiffs'

Motion to Compel the production of email attachments, and modify the ESI protocol. See, In re Broiler Chicken Antitrust Litig., No. 16 C 8637, 2018 U.S. Dist. LEXIS 119536 (N.D. Ill. July 17, 2018).

Pursuant to the terms of the ESI protocol, the parties in this case did not have to produce non-responsive attachments to responsive emails. Instead a placeholder was to be inserted indicating that the attachment was withheld. The ESI protocol required the parties to meet and confer as to the information to be included on the placeholder, but they failed to do so. The protocol allowed any party to request the production of any document they had a good faith basis to believe was responsive. Judge Gilbert declined the Plaintiffs' request to exercise his inherent authority to identify certain categories of documents, and direct the Defendants' to identity the category that each withheld email attachment belonged to on the placeholder sheet. He notes that the Plaintiffs' could have requested additional information on the placeholder sheet, but simply failed to do so. He accordingly declined to "rewrite now the ESI Protocol that was agreed to and memorialized almost two years ago." Id. at *16.

Judge Gilbert suggested that the Plaintiffs might have a good basis to challenge the withholding of attachment if the email that had another attachment that was very important to the case. He distinguished this case from Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 U.S.Dist. LEXIS 95912, (S.D.N.Y. Aug.18, 2011), in which it was decided that non-privileged attachments to relevant emails can be produced. Unlike in Abu Dhabi, here the parties had an agreement that covered how documents were to be reviewed and produced. This case was also different from others in which documents only contained redactions and were not withheld entirely.

The Court also held that the categorization of the email attachments, given the protocol that was in place, would be unduly burdensome:

"Nevertheless,that is the procedure to which the parties agreed and what the Court ordered. Plaintiffs' request for relief in their Motion would place more burden on Defendants by changing the document review and production protocol near the end of a long process. That is not proportional to the needs of the case, and the Court sees no good reason to change the rules midstream." Broiler Chicken, 2018 U.S. Dist. LEXIS 119536, at *18-19.

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