IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 26, 2008
RHOADS INDUSTRIES, INC.
BUILDING MATERIALS CORP. OF AMERICA, ET AL.
The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: CLARIFICATION OF MEMORANDUM AND ORDER DATED NOVEMBER 14, 2008 RE: PRIVILEGE LOGS OF EMAILS
One part of the Court's Memorandum and Order of November 14, 2008 (Doc. No. 118) concluded that any of Plaintiff's privileged documents not placed on a privilege log by June 30, 2008 must be produced to the Defendants, as a sanction for violation of the mandatory requirements of Federal Rule of Civil Procedure 26(b)(5) that privileged materials be disclosed to opposing parties. By letter dated November 19, 2008, Plaintiff's counsel has appropriately requested a clarification of this ruling because of the manner in which some of the privileged material appear in so-called "email chains" or "email strings," i.e., a series of email messages by and between various individuals. Not all of the individual email messages in the string may have been an actual communication with an attorney for the purpose of seeking legal advice -- and therefore privileged -- and/or may not have appeared on a prior log.
Plaintiff's counsel requested clarification on the following two categories:
1. The first category: A string of several email messages in which all or some of the earlier email messages were listed on a previous privilege log, but in which the most recent email (often a "reply" or "forward" message, on top of the email string) was not on a previous log.
Plaintiff believes that a proper reading of the Court's Order requires production of the final, non-logged email, even though it is a privileged communication but allows Plaintiff to redact from production the privileged email messages included in the string that were privilege logged in June 2008.
2. The second category: A string of several emails in which the most recent email (i.e., the one on top of the email string) was privilege logged as of June 30, 2008, and in which all or some of the earlier email messages in the string were not otherwise included on a previous privilege log.
With respect to the second category, Plaintiff believes that a proper reading of the Court's Order allows Plaintiff to retain the email string as privileged, because the final (top) email, with all of the earlier email messages included in the string, was logged as of June 30, 2008.*fn1
A recorded telephone conference with counsel was held on November 21, 2008. Defendants submitted a letter brief on November 24, 2008, asking for a procedure that tempers the producing party's burden but allows the other litigants to appropriately challenge a claim of privilege. Specifically, Defendants asked for a supplemented privilege log that discloses all recipients involved in each e-mail chain, not just those in the most recent message in the chain.
I. Legal Discussion
There are several cases which discuss the issue posed by Plaintiff's request for clarification, the most illuminating of which is Judge Pallmeyer's decision in Muro v. Target Corp., 250 F.R.D. 350 (N.D. Ill. 2007). Judge Pallmeyer's opinion overruled a decision of the Magistrate Judge which required the parties to detail, for each privilege log entry that constituted an email string, all previous email messages contained in the email string. Id. at 363. Using an example provided by the Magistrate Judge, he required a privilege log entry entitled "Email string sent August 12, 2004 at 8:22 AM" to be supplemented to list and describe the additional four email message records contained in this string, from August 11, August 8, August 3, and August 2.*fn2 Muro v. Target Corp., 243 F.R.D. 301, 307 (N.D. Ill. 2007). As noted by Judge Pallmeyer in overruling the Magistrate Judge, this disclosure could be a breach of attorney-client privilege because the act of itemization might force parties, by disclosing what was sent to the attorney, also to disclose the nature of the privileged information.*fn3 Muro, 250 F.R.D. at 363.
Judge Pallmeyer supports her decision by reviewing some cases and holding, based on a sound interpretation of Upjohn Co. v. United States, 449 U.S. 383 (1981), that even though one email is not privileged, a subsequent and privileged email which forwards that prior non-privileged email, will allow the privilege to attach to the entire email chain, including the non-privileged prior email message. Id. at 363. Muro holds that the forwarded material is similar to prior conversations or documents that are quoted verbatim in a letter from the client to the client's attorney. Id. Judge Pallmeyer notes that under these circumstances, a party can therefore legitimately withhold an email chain forwarding prior materials to counsel, although disclosing those prior materials separately. Id.; accord Barton v. Zimmer, 2008 WL 80647 (N.D. Ind. 2008) ("As applied to emails, this means that even though one email is not privileged, a second email forwarding the prior email to counsel might be privileged in its entirety.").
Even though Judge Pallmeyer rejected the Magistrate's Order to log every message contained within an e-mail string sent to an attorney, her approach does require that each version of an email string (i.e. a forward or reply of a previous email message) must be considered as a separate, unique document.*fn4 See Muro, 250 F.R.D. at 363. Based on this approach, each message of the string which is privileged must be separately logged in order to claim privilege in that particular document. Accord Baxter Healthcare Corp. v. Fresenius Med. Care Holding, Inc., 2008 WL 4547190 (N.D. Cal. 2008) ("Each email is a separate communication, for which a privilege may or may not be applicable. Defendants cannot justify aggregating authors and recipients for all emails in a string and then claiming privilege for the aggregated emails."); Paul R. Rice, Attorney Client Privilege in the United States § 11:6.1 (2d ed. 2008) ("[E]ach email message should be separately described in the privilege log, and each separate message must stand on its own").
II. Clarification of Order
After reviewing these authorities and recognizing that this is an issue which is frequently discussed in continuing legal education seminars and among lawyers attempting to deal with electronic discovery issues, I have some hesitancy in adopting a broad, black-letter rule.
A situation may arise where a number of email messages, by themselves not privileged, but eventually sent to an attorney for the purpose of securing legal advice, become privileged. If they are not produced, they must be logged individually in order to claim the privilege, but they do not have to be detailed in the log entry describing the email message sent to the attorney.*fn5
On the other hand, if the email messages are part of routine business affairs, and not for the purpose of securing legal advice, then the underlying emails would be discoverable. If a party asserts that, because they are eventually sent to the attorney, the messages become privileged, then each must be entered on the privilege log.
As an over-arching matter, it is important to recognize in this entire discussion the distinction between "facts" and "communications" because a party with an obligation to provide discovery must always be sure it has disclosed the facts, since it is only the communications with counsel that are privileged. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994) (citing Upjohn Co., 449 U.S. at 395-96).
Turning to our current situation, as to privileged material not logged as of June 30, 2008, the material must be produced as a sanction for the long delay of non-disclosure per this Court's Order of November 14, clarified as follows:
A. Category One
Category One consists of email strings containing some email messages that were listed on prior privilege logs but where the most recent, top email was not logged as of June 30, 2008. Even though the top email message may be privileged, it now must be produced to the Defendants as a sanction for failure to log. However, the underlying messages in the email string that constitute privileged communications and were logged by June 30, 2008, need not be produced and therefore those portions (and only those portions) previously logged can be redacted in the production of the e-mail string.*fn6 Consistent with Muro, the privilege log entry for that particular string need not disclose a description of the messages underlying an email string that were sent to an attorney for the purpose of seeking legal advice.
B. Category Two
As to Category Two, where the most recent version of an email string was logged by referencing the top email message, Plaintiff has sufficiently protected the privilege. However, Plaintiff had an obligation to log separately all of the prior messages in the email string, and any of these prior messages not logged as of June 30, 2008, must be produced to Defendants. Applying Muro, Plaintiff need not disclose that the underlying messages were part of an email string subsequently forwarded to counsel.