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.
What is a Document Family?
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.
Why is it a “Best Practice” to Categorize Document Families Consistently?
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.
The Real Best Practice? Agree Ahead of Time About Document Families.
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.”
Under Evidence Rules, Documents May Have to Be Considered as a Whole
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.
Documents are to be Produced as Kept in Ordinary Course of Business
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.”
Different Considerations for Privileged Documents
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.
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.