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Properly Logging E-mail Versions Key to
Maintaining Privilege and Avoiding Sanctions

Gregory L Fordham
December 2008

Rule 26(b)(5) of the FRCP requires that a party withholding information based on a claim of privilege must state the claim expressly  and describe the nature of the documents or information withheld in a manner that will enable other parties to assess the claim of privilege or protection.

If a party withholds information without properly disclosing the basis the party may be subject to sanctions as well as  waiving the privilege.

Many Courts have interpreted rule 26(b)(5) as requiring the party asserting a privilege to produce a privilege log describing the documents withheld.

When it comes to e-mail in general and e-mail chains in particular the implication of the Rule 26(b)(5) requirements can have complicating consequences.

A significant issue is whether an e-mail chain, where participants reply repeatedly to each other’s messages, can satisfy the rule’s disclosure requirements by listing only the top level message or must each message in the chain be separately logged.

In the event of the latter, the complicating consequence is simply the added burden placed on the party claiming privilege by having to identify each sender, recipient, carbon copy recipient and blind carbon copy recipient for each message in the chain as well as any forwarded messages.

This very issue has been considered several times by various courts with varying results.  Perhaps the most notable is Muro v Target Corp, 250 F.R.D. 350 (N.D. Ill. 2007) where the Magistrate Judge’s ruling that the failure to individually itemize e-mails made the log inadequate was overruled by the Trial Judge.

The reasoning of the Trial Judge for overruling the Magistrate Judge in Muro involved the situation where the strings involved attachments that were not by themselves privileged even though the communication of those facts to counsel for the purpose of obtaining legal advice could be privileged.

In forming her opinion the Trial Judge in Muro considered the decision in Upjohn Co. v United States, 449 U.S. 383, 101 S.Ct. 67 (1981) and decided that a party can legitimately withhold an entire e-mail forwarding prior materials to counsel, while also disclosing the prior materials themselves.

The issue of e-mail chains and privilege logs appeared again in the recent decision, Rhoads Industries, Inc. v Building Materials Corp of America,  E.D. Pa, C.A. No. 07-4756, (11/26/08)

While the decision in Rhoads reviewed both Muro and Upjohn, it is differentiable from those cases in one significant respect--the issue of e-mail versions.

As described in Rhoads an e-mail chain with four parts to the chain can also have four versions.  In the final version, the e-mail chain has four links.  There would be the final top level communication as well as the three predecessors that appear in the chain.

In addition, however, there is the earlier version of the e-mail that had only three links—the top level and then the two predecessor communications in the chain.  Prior to that is an earlier version with two links and so on.

While the Rhoads Court followed Muro and did not require the listing of each link in a chain of an e-mail communication for which privilege was claimed, it recognized that each version was a separate communication requiring disclosure in the log if it was to be withheld.

Thus, the production of versions not properly identified in the privilege log could be compelled under Rule 37(b)(2).  There are several ramifications to this ruling.

First, it is possible that while earlier versions of the e-mail were properly logged, later versions were not.  In that case, the Rhoads Court allowed the producing party to redact those portions of a later e-mail containing privileged material that had been properly logged in earlier version.

Second, it is also possible that while later versions of an e-mailer were properly logged the earlier versions were not.  In that case, the Rhoads Court required production of the earlier versions.

Third, in e-discovery cases there is always an interest in reducing the number of similar or identical documents that must be reviewed.  The e-mail chains situation is one area where e-discovery processes have struggled to eliminate redundancy.  As a result of the decision in Rhoads the quest for efficiency is made more difficult since the existence of earlier versions of an e-mail chain has more significance when claiming privilege.