Mendes & Mount LLP

While at first glance the black type and white page on which the Federal Rule of Civil Procedure 26(b)(5) is printed may make the rule appear to be simple, straightforward, and uncomplicated, in recent years, this rule has proven itself to be nothing but complex.  This assertion proves itself to be especially true when considering one of the most fundamental privileges in the legal field, the attorney-client privilege, and one of the most basic components of the ever growing world of technology, the e-mail.  As in various other realms of the business world, the legal field has been impacted by the expansion of technology.  With each new development has come tremendous advantages, but with these advantages comes change, and the problem of interpreting and implementing old world rules within the boundaries of a new time.  The court system’s struggle with the imposition of the attorney-client privilege within e-mail strings is perhaps the best illustration of how these “simple” concepts are no longer so simple after all.

The Rule
Under the Federal Rule of Civil Procedure 26(b)(5), a party may withhold information that would otherwise be discoverable by asserting a privilege over such information.   In withholding this information, the party must expressly make the claim and describe the undisclosed information in a manner that will enable opposing parties to assess the proper assertion of the privilege at hand, while not revealing the privileged information.  This information is contained in a privilege log that is then turned over to the opposing party.  

Opposing Views
Like many other professionals, each day, lawyers send and receive hundreds of e-mails, from colleagues, clients, and even potential clients.  These e-mails may consist of a single message or multiple messages from the same person, forwarded messages, or a message to which the lawyer is sending a reply.  These messages may regard legal advice, mundane business matters, or a mixture of the two.  As a result, the information contained therein may be privileged, non-privileged, or both.  Thus, when entering litigation, these “simple” messages that can be sent at the click of a button, transform into a mountain of questions that the courts have been trying to resolve, but have not yet been able to settle.  While it has been debated whether widespread dissemination of an e-mail or the lack of a further dissemination limitation clause results in the waiver of the right to claim that information is privileged, perhaps the most basic question in this realm is whether an e-mail string should be considered a single communication, similar to a conversation, and thus be logged as such; or whether each individual e-mail comprising the string should be considered a separate communication regarding which the privilege must be evaluated.

Finding it misleading to break down a series of e-mails into individual messages against which a privilege must be assessed, the District Court for the Northern District of California, took a strong stand in favor of the single communication theory in United States v. Chevron Texaco Corporation.   There, the court reasoned that each e-mail/communication was comprised of the final sender’s message and all preceding e-mails that were attached to this message.  Thus, if the final e-mail in an e-mail string was privileged, then all prior e-mails that were attached to the final e-mail would be privileged as well; if a privilege was waived with regard to the final e-mail composing an e-mail string, then the ability to assert a privilege over all prior attachments in the string was waived.
 
Analogizing e-mail strings to a conversation, the defendant in In re Universal Service Fund Telephone Billing Practices Litigation, sheds more light on the reasoning behind the single communication theory.   Pointing out that just as each individual’s lines in a conversation would not be separated and assessed independently with regard to privileged information, the defendant argued that neither should an e-mail string, no matter how many individual e-mails are involved.   Despite the defendant’s colorful arguments, the judge for the Northern District of Kansas could not be swayed in this matter, ultimately stating that the inclusion of individual e-mails in a privilege log was “essential.”   Finding the prior rulings upon which the defendant built its argument to be unpersuasive, the court preferred to err on the side of safety rather than support the defendant’s “risky,” yet “reasonable” arguments.  There, the court rejected the defendant’s analogy for three reasons: (1) the court found that the prior opinions were construed too broadly and that they lacked the in-depth analysis that would be required to be persuasive; (2) the court believed that the well-established case law concerning privilege logs and privileges provided better guidance on this topic; and (3) the fact that, if the defendant’s argument was to be upheld, such a rule would result in stealth claims of privilege which, intrinsically, could never be the subject of meaningful scrutiny by a judge or a meaningful challenge by opposing counsel.  

While it may be easy to understand how two different courts, from two completely different states can have varying perceptions when it comes to an area of unchartered territory, perhaps providing the most clear illustration of opposing views and varying concerns, are the conflicting opinions of the magistrate judge  and the district judge  for the Northern District of Illinois in Muro v. Target Corporation.  There, upon reviewing the facts, the magistrate judge held that where a defendant’s privilege log merely identified the most recent e-mail in a particular e-mail chain, and failed to mention information regarding prior e-mails which were forwarded on as a part of the chain, the requirements of Rule 26(b)(5) had not been met.   Stating that the “mere assertion of a privilege is not enough to establish the privilege,” the judge focused on the withholding party’s burden to describe the communications and nature of the documents being withheld in a way that did not reveal the privileged information but enabled the opposing parties to evaluate the applicability of the privilege asserted.   In failing to include information regarding the prior communications comprising the e-mail chain, individuals who received earlier messages, who might not have been sent the last message, were not included on the defendant’s privilege log, thus making it impossible for the opposing parties to assess the privilege asserted when considering each individual e-mail in the chain.  The court therefore concluded that each communication not being produced must be described, whether that communication consisted of an entire e-mail string or simply one part of the string.   
 
Reading Rule 26(b)(5) with more emphasis on the requirement of sufficient information for an opposing party to evaluate the applicability of privilege, without revealing privilege information, the district judge came to the opposite conclusion.   Although the concerns raised by the magistrate judge were warranted, the district court judge highlighted the intrinsic risk of requiring the defendant to log each individual e-mail as a separate communication on the privilege log.  There, the district court judge recognized that in making a party include already produced documents in its privilege log, the party may in a sense be forced to waive the attorney-client privilege where the opposing party would then be able to gather enough information from the log and the previously produced materials to discover the information forwarded to the opposing party’s attorney.   Relying on Upjohn Company v. United States,  which provides that non-privileged information, when communicated to an attorney, may be privileged even if the primary information remains unprotected, the district court judge likened the prior e-mails in an e-mail string to documents or prior conversations that are later quoted by an individual to his attorney or letters with attachments.   Additionally, the district court judge went as far as saying that compelling a party to include previously produced documents in its privilege log would be “confusing.” 

Seemingly in agreement with the district judge’s application of Rule 26(b)(5) in Muro, Rhoads Industries, Inc. v. Building Materials Corp. of America  elaborated on the underlying components of an e-mail string in a more thorough explanation of Muro, before evading the establishment of a “broad, black-letter rule.”   Highlighting the complexity of the e-mail string, the court noted that an e-mail chain that consisted of four e-mail messages would be comprised of four distinct versions of the e-mail: (1) the final complete string which would consist of the most recent version of the e-mail, as well as the previous three e-mails; (2) the string consisting of the third, second, and first e-mail; (3) the string consisting of just the second and first e-mail; and (4) the original e-mail from which the string eventually grew.   There, the court recognized that in Muro the district judge found that while each prior version of an e-mail string was considered a unique document, and thus must be produced, or, if privileged, included on a privilege log.  However, despite his understanding that the district judge in Muro disagreed with the view that Rule 26(b)(5) required separate itemization of each individual e-mail comprising an e-mail string, the judge in Rhoads seemingly took a step back from this approach in stating that if a document was not produced, each e-mail must be logged individually in order to claim the privilege.   With that, no sooner than Muro’s seemingly balanced approach came into existence, than was its illusion of a resolution again thrown off kilter by the Eastern District of Pennsylvania.

Following suit of those that had come before, courts continue to flounder, flip-flopping back and forth, when confronted with the complex dilemma that the e-mail string presents when included in a privilege log.  In the most recent ruling regarding this issue, in Benefitvision Inc. v. Gentiva Health Services, Inc., a magistrate judge for the United States District Court for the Eastern District of New York proved that we may not be getting any closer to resolving this issue once and for all.   Finding in favor of a plaintiff regarding their motion to compel a defendant to produce e-mail communications that were being withheld based on assertions of privilege, the magistrate stated that the defendant’s proposition of producing a supplemental privilege log regarding intermediary e-mails that were withheld, but not privileged, was unacceptable.   Rather, the judge required the defendant to produce the intermediary e-mails comprising e-mail chains if such e-mails were not the subject of attorney-client privilege or work-product, yet made no reference to prior court decisions on the issue.   Although no precedent had been set regarding this matter, in choosing to disregard the opinions of those that came before, the judge for the Eastern District of New York provides the perfect example of how the difficult issue of e-mail chains in privilege logs is being perpetuated.

Practical Implications and Other Complications
As previously stated, while e-mail has certainly provided legal professionals with numerous advantages on a daily basis, it has also generated a never-ending list of questions that have gone unanswered.  While courts struggle to define the term “communication” in an effort to properly enforce assertions of privileges under Federal Rule of Civil Procedure 26(b)(5), their battle against the e-mail string has often resulted in wasted time, money, and effort as attorneys are forced to draft privilege logs, spending tremendous amounts of time going through each document and providing its description, only to find out that, best case scenario, the resulting product must be changed in order to meet a specific court’s obscure requirements.  In an even worse instance, a less forgiving court could find that the party failed to properly assert a privilege where the description of e-mail strings in a privilege log are not found to be satisfactory, and thus, the party is found to have waived these privileges.  An accidental waiver of a litigants fundamental privileges could then result in damaging the participating attorney’s reputation as well as his credibility. 

Moreover, while many negative implications of the e-mail string’s presence within privilege logs are apparent, others require more thought.  For example, when briefly examining the attorney-client privilege, it is possible to gain a simplified understanding of the insurmountable task at hand that courts currently face.  The ease with which an alleged privileged message can be disbursed to an infinite number of people at the click of a button causes courts to question whether each individual present on an e-mail string  was a person directly concerned with the communication, and was thus a privileged party to the same.  Courts must scrutinize the description of these individuals, including their job titles and their possible roles as agents to privileged parties, when making these decisions.  Furthermore, courts must determine whether such widely disseminated communications were made with an actual expectation of continued confidentiality.  In essence, courts are forced to dissect each and every element of the attorney-client privilege in a new and painstaking manner despite the fact that this process use to be something more like second-nature.  Having knowledge of the courts’ newly increased standards of review, attorneys too, must act with greater care to inform their clients of the risks of waiver and how waiver may occur.  As a result, many attorneys are left to wonder whether e-mail is in fact a blessing or a curse.

Looking Forward
Although courts still struggle with the proper inclusion of an e-mail string in a privilege log, until this conflict is resolved, there are steps that can be taken to safeguard clients’ privileges while also saving time, money, and energy. 

A first, although unlikely, proposition would be to avoid using e-mail.  While this option is obviously not the most convenient solution, claims were filed and cases were resolved before the evolution of e-mail.  E-mail could also simply be used to set up meetings or conference calls during which confidential information could be discussed.  Additionally, rather than avoiding the use of e-mail strings as a whole, lawyers could simply keep in mind that it is their duty to keep their clients informed of their privileges and the proper steps that need to be taken in order to protect those privileges.  An attorney should begin by explaining to his client the dangers of e-mail strings and only e-mail small groups of privileged parties.  These e-mails should include a definite statement of confidentiality which should be explained to his clients ahead of time so as to ensure e-mails are not being forwarded to non-privileged parties after being launched into cyber space.   As a result of these steps, privileged e-mail strings and the dissemination of the same could be reduced.

A second, and possibly more advantageous way of tackling a privilege log in light of the existence of e-mail strings, is to strike an agreement amongst all parties to a suit regarding the content and format of privilege logs to be produced in a particular matter.  While litigants could agree to treat e-mail strings as a single communication in one case, they could agree to treat them as separate communications in another, but also agree to identify each communication by already existing metadata that could simply be exported to a privilege log rather than manually entering a description of the same.   As a result, each litigant would know what to expect and what he must create, reducing the wasted time, cost, and energy of drafting a privilege log that has to be revised.  According to the Notes of the Advisory Committee on Rule 26(b)(5)’s 1993 amendments, Federal Rule 26(b)(5) makes no attempt to define the specific information that must be provided by a party in a particular case when a party asserts a privilege, leaving lines of opposing party communication open for negotiation.   Note, however, that in creating these guidelines, the parties to a matter must continue to abide by Rule 26(b)(5).