Federal and, increasingly, state judges are becoming tough discovery police patrolling a new beat in a largely digital neighborhood. Although electronic discovery often proves to be a time-consuming, expensive and burdensome obligation, its full impact on litigation practice is yet to be discerned. For example, can e-discovery practices affect the hallowed protective niche traditionally occupied by privileged communications, such as attorney/client, work product and material prepared for litigation? In the past few years many have perceived an erosion of protections regarding privileged communications. Will that perception now be further fueled by the seeming urgency some judges are attaching to a litigant's full discharge of electronic disclosure obligations? These are important questions. There seem to be no easy, early answers. Presently, some federal judges and particularly U.S. magistrate judges, apparently attempting to make litigants toe the line, have been quite strict about enforcing electronic disclosure. Perhaps that is to be expected when new rules are imposed. The potential clash between e-discovery imperatives and protection of privileged communications is illustrated by a June 7 decision by U.S. Magistrate Judge Geraldine Soat Brown of the U.S. District Court for the Northern District of Illinois. The case is Muro v. Target Corp.,2 where a prolonged dispute about documents withheld from discovery under a claim of attorney-client privilege came to a head. The controversy spewed over into considerations of the adequacy of privilege logs, waivers of privilege and how to deal with so-called e-mail "chains," "strings" and "strands." The latter is a particularly acute question because, according to U.S. Magistrate Judge Brown, only a few reported opinions have addressed, either directly or implicitly the issue of how e-mail chains should be disclosed on a privilege log.3 Defendant Target withheld 89 documents asserting attorney-client privilege. Plaintiff claimed the privilege log was inadequate. The court ordered defendant to produce a privilege log in compliance with Federal Civil Procedure Rule 26 and as described in a case called Allendale Mut. Ins. Co. v. Bull Data Sys., Inc.4 Attempting to comply, Target produced another privilege log. This, too, evoked a motion to compel by plaintiff. The court directed Target to produce copy of the 89 documents for an in camera inspection. Log Inadequacies Even before the in camera review, Magistrate Judge Brown saw inadequacies in the privilege log. Although it contained the requisite categories of information, the descriptions were void of factual detail; the entries did not provide the identity of an attorney claimed to have been part of the communication; the descriptions of the documents, most of which were e-mail correspondence, were merely "cut and pasted" information contained in the subject line of the underlying e-mails. The court's in camera review led to her conclusion that Target had failed to satisfy its burden of providing factual information necessary to sustain the privilege. Reluctant to order that a waiver of the privilege had occurred, Target was granted "one more opportunity to demonstrate the privileged nature of the communications." Specifically, defendant was told to "establish both the identity of those individuals included in the chain of communication and the fact that their receipt of the communication did not compromise its privileged status."5 Target produced a revised privilege log identifying 89 documents. Eventually, most of the documents truly at issue were chains of e-mail communications among defendant's employees. Some included an attorney; many did not. The revised log, unlike its predecessor, did include the job title of the author and recipient of each communication and whether that individual was an attorney. However, "notably," said the court, defendant did not submit an affidavit explaining the significance of the job titles. As for documents "consisting of a string or chain of e-mail communications," Target simply identified those individuals who were party to the last message in time. In addition, said the court, defendant "recycled the same six to seven formulaic descriptions of the privileged nature of the document." A hearing followed plaintiff's motion to compel production of the documents claimed to be privileged. Target declined to file a response opting instead to rest on the revised privilege log. Magistrate Judge Brown now had to ponder the application of well-established principles of attorney-client privilege to the context of e-mail communications in a large corporation. This task she described as "a relatively new challenge."6 The question of e-mail chains, strings or strands, as they are sometimes called, requires special consideration. As one court observed: "[M]any, if not most, e-mail strands present unique issues . . . . First, e-mail strands may span several days . . . . Second, the individuals receiving or being copied on the e-mails within a strand [may - ] and usually do - vary . . . . Third, one e-mail within a strand in which counsel are senders, recipients or being copied may contain entirely factual and thus nonprivileged information, while another e-mail within the same strand may quite clearly seek or render legal advice."7 Federal courts do not abide the mere assertion of the privilege. Federal Civil Procedure Rule 26(b)(5) requires the withholding party to describe the nature of the documents in a manner that will enable other parties to assess applicability of the privilege. The elements of privilege needed to be established have been summarized: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.8 Thus, the purpose of the communication must be the obtaining or providing of legal advice, not a business discussion. Moreover, the confidential nature of the communication ought not be compromised by disclosure to individuals outside the attorney-client relationship. Thus, when communications are made between a client and attorney in the presence of a third person problems about the confidentiality arise. Even when communications to attorneys are made by company employees, questions of waiver may arise depending on whether the employee actually had "primary responsibility" or "direct concern" about the subject matter of the communication. In some quarters if an employee did not need access to the communication, dissemination to that employee may waive the privilege.9 Chains and Strings As a result of the complexities and because privilege is "construed narrowly," federal courts have required privilege logs to be submitted as a mechanism for carrying out the mandate of Rule 26(b)(5). Requisite details may vary but in some districts the content of privilege logs is strictly policed. E-mail chains, strings and strands have complicated the agenda because the affected communications may piggyback on predecessors and, depending on the sender's forwarding instructions, may include several, perhaps even many, somewhat-related communications in which it is not clear that legal advice is being sought or rendered or that attorneys are involved or that employees who may be distributees of the chain (or portions of it) are ones "directly concerned" with or "primarily responsible" for the subject matter of the legal advice. Further, there is the ubiquitous problem of expansive distribution lists and the nature of e-mail correspondence in which the communicator, rather than repeating the one snippet relevant to his communication, seeks to ease his or her drafting burden by attaching someone else's entire e-mail containing the affected snippet. This practice may mean that e-mails genuinely originating in bona fide, confidential and narrow-circle attorney-client exchanges somehow unintentionally may migrate to distributees not originally part of the attorney-client exchange nor intended to be recipients. E-mail chains or strings, thus, can burden the task of drafting a privilege log. The relative paucity of reported case law on this subject marks Muro as a decision of note. Because of Magistrate Judge Brown's focus on specific e-correspondence, readers may get some flavor of how potentially dangerous routine e-mail practices may be in compromising privileged communications. Common practices may have to be reviewed and changed with particular sensitivity to protecting attorney-client exchanges. Litigators may have to consider altering their customary privilege log forms to accommodate the challenges posed by e-mail strands, as reflected in the Muro case. Target seems to have listed only the most recent e-mail in the chain. But the court said this practice fails to disclose important information about what is being withheld from production. For example, one document was described in the privilege log as an "E-mail string sent Aug. 12, 2004 at 8:22 a.m." to 11 people regarding "potential VAPR Issue With Autosub." The sender was listed as "Mike Murray, TFS Systems Stability." Reviewing the actual document, however, showed the court that the "string" consisted of five different messages of text starting with a message by Mr. Murray on Aug. 2, 2004, to some but not all of the people who received the Aug. 12 message, and not including the corporate counsel. Some of the documents were "simply business communications." The document actually identified on the privilege log (the Aug. 12 e-mail) had no privileged content at all; it was strictly a business discussion.10 The court said that the basic principle of the privilege was to protect a "communication." Thus, it follows that the privilege log must identify each communication which has been withheld - whether that communication is the entire strand (as where a distinct and identifiable number of individuals have exchanged e-mail on a single privileged topic), or only one part of the strand. Only the privileged communication identified in the privilege log in the manner required may be withheld: "Every other part of the strand must be produced." In a footnote, the court said she was "well aware" of the labor and expense potentially involved in itemizing each separate communication within an e-mail string. Nevertheless, the rule requires compliance. Magistrate Judge Brown did suggest that the parties "may agree in advance on how to address e-mail strings and corresponding entries on privilege logs." Indeed, Rule 26(f)'s "meet and confer" requirement offers such an opportunity.11 The court also addressed sufficiency of the privilege log as to individual e-mails claimed to be privileged. Some involved "dissemination to a large group." Although some e-mails were limited to two or three individuals, many were distributed to at least 10 employees. Some were distributed to "unidentified distribution lists" designated by capital letters or acronyms. Then, there was the "lack of information about the role of the recipients." Were all the persons "entitled to know privileged communications"? More than 35 Target employees were identified throughout the privilege log bearing job titles such as "Autosub Project Team"; "TFS Systems Stability"; and "Manager, Credit Card Room." Without further description, such job titles have little if any significance to outsiders.12 The court also addressed the "lack of limitation on further dissemination." None of the messages in a particular string, including those referring to information from "legal," contained any limitation not to disseminate or any notation that the information should be maintained confidential or an admonition that the e-mail containing that discussion should not be forwarded to others. Since the "final" Aug. 12 message in the string contained only business information, the court would not be surprised if one of the dozen recipients of the Aug. 12 message forwarded it on yet again to someone else, complete with other messages in the string actually referring to "legal." Because of significant deficiencies in the privilege log, the prior three opportunities given to Target to provide factual bases for the support of its assertions, and its choice at the hearing to rest on its bare descriptions in the log, the court, "with reluctance," concluded that the documents withheld had to be produced. Magistrate Judge Brown did not ascribe the failure to sustain assertion of the privilege solely to litigation counsel. "More fundamentally," she said, "it reflects a style of dealing with internal corporate communications that is inherently at odds with the basic principle that the ability to withhold otherwise-discoverable information is a privilege and an exception to the general rule of discoverability. It is difficult to imagine how communications circulated among such a large number of corporate employees without - or in spite of - an expression of confidentiality or limitation on further dissemination, and intermingled in so many instances with nonprivileged business discussion, could have been created with the intention of being attorney-client privileged and could have, in fact, remained confidential communications."13 Conclusion Put Muro on your reading list and consider what adjustments must be made in e-mail practices to maximize protection of privileged communications. Further, litigation counsel need to consider how to treat e-mail chains in their privileged logs. Michael Hoenig is a member of Herzfeld & Rubin. Endnote: _________________________________________________________________________________________ 1. New York Law Journal, May 30, 2007, p. 3. 2. 2007 U.S. Dist. LEXIS 41442 (N.D. Ill. June 7, 2007). 3. Muro, 2007 U.S. Dist. LEXIS 41442, at *12-*13 (citing In re Universal Service Fund Telephone Billing Practices Litigation, 232 FRD 669, 672 (D. Kan. 2005); Stafford Trading, Inc. v. Lovely, 2007 U.S. Dist. LEXIS 13062 (N.D. Ill. Feb. 22, 2007) Cf. United States v. Chevron Texaco Corp., 241 FSupp2d 1065, 1074-75 n. 6 (N.D. Cal. 2002). 4. 145 FRD 84 (N.D. Ill. 1992). 5. Muro, LEXIS at *4. 6. Muro, LEXIS at *6 (citing J.M. Moore & G.S. Kaufman, "Discovery Can Get Tangled Up In 'Strings': It's Not Yet Clear How Privileges Should Apply to E-Mail Exchanges," 29 Nat'l L.J. 17 (Dec. 4, 2006)); In re Universal Service Fund, supra n. 3, 232 FRD at 673. 7. Muro, LEXIS at *7 (quoting from In re Universal Service Fund, 232 FRD at 673). 8. Muro, LEXIS at *8. 9. Muro, LEXIS at *10-*11. 10. Muro, LEXIS at *14-*15. 11. Muro, LEXIS at *15 and n. 5. 12. Muro, LEXIS at *17-*18. 13. Muro, LEXIS at *26-*27. |
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