Many will tell you that it is an e-discovery best practice to classify document families consistently and that “parent-child relationships” (such as emails and attachments) should be preserved during document production in litigation.
But should you take a “best practice” at face value because an e-discovery blog suggests that it is so? Truth is, although we think it is a good idea, there is no hard and fast rule. But, there are a few legal arguments to support producing document families intact. Bottom line: it is probably best to agree with opposing counsel ahead of time about production of document families during discovery, this is especially true if documents referenced in an email are not actually attached, but included via hyperlink.
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A document family is two or more related documents that are grouped together. The most common example of a document family is an email message with an attachment. The email message is the parent and the attachment is the child.
As discussed below, a main reason to produce document families intact is because under rules of civil procedure, documents are to be produced as they are kept in the normal course of business. For that reason, it is also generally a good idea to tag document families consistently. That is, if an attachment is relevant to a legal matter, its corresponding transmittal email should probably also be marked responsive.
Efficiency is also another reason to tag document families consistently. Most e-discovery document review platforms permit users to tag families in bulk. So, rather than marking each document individually, e-discovery software permits users to tag all documents in a family with the push of a button. This obviously saves review time.
Tagging document families consistently during document review is a good practice because maintaining parent-child relationships is often specifically requested by litigation opponents. Even if not specifically requested, producing attachments with corresponding emails will cut down on calls from opposing counsel to supplement a document production. Also, withholding document family members may raise eyebrows and call the completeness of a document production into question.
Even if logistically it is best to tag and produce document families together, is it required by court rules or case law? As with all great legal questions, the answer is maybe.
Case law addressing the production of document families during e-discovery is sparse, but there is at least one well reasoned and thoughtful opinion out there: Abu Dhabi Commercial Bank v. Morgan Stanley Co., Inc., No. 08-Civ. 7508 (S.D.N.Y. Aug. 18, 2011). The opinion examines the pros and cons of producing document families together and ultimately concludes that in the end, “the best practice is for parties to discuss the production and logging of e-mails and attachments as singular or separate items in advance of production and to reach agreement as to the treatment of e-mails and attachments for responsiveness and privilege purposes.”
Similarly, another court pointed out that rather than agreeing to categorize and produce document families uniformly, “parties may agree to a more onerous, time-consuming, and expensive page-by-page or section-by-section designation procedure, but [courts should not] require it in the absence of an agreement or a demonstrated failure to designate in good faith.”
As noted in the Abu Dhabi opinion, one argument supporting production of e-mail messages with attachments is found in rules of evidence, such as Federal Evidence Rule 106, stating that if a part of a document is used as evidence, the party offering it may have to produce the entire document if it “ought in fairness” be considered as a whole.
Probably the most obvious legal authority for production of entire document families in e-discovery is found in Fed. R. Civ. Proc. 34 and its state counterparts requiring production of documents “as they are kept in the usual course of business. . . .” Rule 34 also states that if a party does not specify a desired format for the production of electronically stored information (ESI), documents must be produced “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
Generally, in the usual course of business, emails are maintained on email servers and messages and attachments are kept together. See, for instance, PSEG Power NY v. Alberici Constructors, Inc., 1:05-CV-657 (N.D.N.Y. Sep. 7, 2007), in which the court noted, “[n]ormally, one would expect that an email and its attachment would have been kept together in the regular course of business, and the production of said documents would have followed suit.”
However, the distinction between producing responsive document families versus privileged documents in a document family should be noted. For instance, a CEO might forward a vice president a confidential legal memorandum drafted by company attorneys. While the transmittal email may not be privileged, the memo may very well be, and if so, should be withheld from a document production.
Are hyperlinked documents sent in an email subject to the same electronic discovery production standards as email attachments? According to one court, maybe not, but the real answer probably lies in whether the data is in a party’s possession, custody, or control.
In Nichols v. Noom Inc., et al. No. 20-CV-3677 (S.D.N.Y. Mar. 11, 2021), the court distinguished hyperlinked documents in an email from attachments and held that requiring production of documents referenced and hyperlinked in an email may be disproportionate.
Defendant Noom used Google Workspace (formerly G Suite) as its productivity and email platform. The parties agreed upon an ESI (Electronically Stored Information) protocol and discovery commenced.
Noom used Google Vault to collect its email and responsive ESI and produced emails in discovery. After receiving the emails, plaintiff Nichols worried that documents hyperlinked in email messages may not have been produced, and if not, should be because they were no different from email attachments. (Gmail users can send files as attachments, but if the attached file is too large, by default, Gmail creates a download link to the file in Google Drive. In other cases, Gmail users often choose to share documents via a link, say a Google Doc, rather than sending as an attachment).
Ultimately Nichols took the issue to the judge and asked for an order requiring an additional data collection for hyperlinked documents in email messages.
The judge refused a further collection for a few reasons, including the fact that the parties’ ESI protocol did not address hyperlinked documents, nor did it specifically define attachments.
More significantly, the judge did not agree links in the email were akin to attachments because
“[w]hen a person creates a document or email with attachments, the person is providing the attachment as a necessary part of the communication. When a person creates a document or email with a hyperlink, the hyperlinked document/information may or may not be necessary to the communication. For example, a legal memorandum might have hyperlinks to cases cited therein. The Court does not consider the hyperlinked cases to be attachments.”
Also, the court noted that a further collection was likely disproportionate because the linked documents were likely produced outside of the email production and there was no showing that there was any need for the documents.
So, what is the takeaway? Consider addressing the handling of document families during Rule 26(f) and early case discovery conferences. Also, consider requesting full document families directly in document requests or subpoenas.
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