Special Master Considers Whether Attachment to Emails Must be Produced Together

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From the KL Gates Electronic Discovery Law Case Summaries.

Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011)

This case outlines a situation where a special master was faced with a decision regarding the production of emails and accompanying attachments.  Attachments were being withheld, allegedly due to the fact that they were outside the date range of the requests.  The special master considered the issue, and provided some analysis based on other similar circumstances.  "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 . . . seperately," and reasoned that “[r]elevance is thesine 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 specific recommendations, which included an additional meet and confer, were accepted by Judge Shira Scheindlin.