Eastern District Magistrate Judge A. Kathleen Tomlinson ruled on May 23 that an entire e-mail chain cannot be withheld during EDiscovery on the grounds that it contains a single e-mail with privileged information. The discovery ruling in BenefitVision Inc. v. Gentiva Health Services Inc., 209-cv-00473, involves an $800,000 contract dispute between benefits consultant BenefitVision and Gentiva.
Privilege
Plaintiff contended that Defendants withheld entire e-mail chains where only one e-mail in the chain is actually privileged. Plaintiff contended that "just because one email is considered privileged the entire email chain should not be considered protected, but that one email should have been redacted . . ." Defendants response stated that "to the extent intermediary emails were withheld, but are not privileged, Gentiva is also willing to produce a supplemental privilege log."
On May 23rd, Judge Tomlinson ruled that Gentiva could not withhold e-mail chains from production as protected by attorney-client privilege unless the entire chain was privileged. "If an intermediary e-mail in the chain is not subject to work-product or attorney-client privilege, it cannot be withheld from production," she ruled. "If there are e-mail chains in which Defendants claim privilege over only parts of the e-mail chain, those allegedly privileged e-mails must be redacted and all non- privileged portions must be produced." She further clarified her ruling by stating that if Defendants contend that an e-mail chain contains only privileged information, then it can be withheld as long as it is included in the privilege log for review by the opposition.
Privilege Log
The Judge took further issue with other discovery procedures by Gentiva. According to Fed.R.Civ.P. 26(b)(5)(A)(ii), when a party withholds otherwise discoverable documents from production based on attorney-client privilege or the work-product doctrine, that party is required to: "describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Based on a one page example of the privilege log provided to the court, she opined that the privilege log was inadequately prepared and insufficient.
Specifically, the court identified the following issues with the privilege log that had been provided:
• The privilege log entries were not numbered, making it difficult to identify and discuss specific items.
• The format of the log consisted of a data dump from the metadata fields and was never edited by a human to make it easily legible and useable. The provision of computer code for individual name entries rendered the worksheet unnecessarily long and difficult to read. For example (the "DateSent" field in the first column reads "2009-02-18T14:16:13.033-05. . ."
• Certain fields on the spreadsheet appear to be incorrectly formatted and data was cut-off and therefore not visible to the opposition.
• The final criticism by the court regarded the content of the privilege log, specifically the “Subject” field descriptions. The rules require that the privilege log identifies “each document with as much specificity as is needed to demonstrate” that the document is subject to attorney-client or work-product privilege. Providing generic, non-specific titles is insufficient information.
The court stated that the company was improperly trying to withhold documents on the grounds that they contained proprietary business information, without providing the proper information for evaluation. Gentiva was ordered to submit an amended privilege log addressing the issues identified and to produce the redacted e-mail chains.
The Take Away
The production of documents is a complex procedure and the Rules of Civil Procedure provide specific guidelines which must be adhered to in order to satisfy the court. The mass tagging of an entire email chain as privileged may be expedient from a review perspective but attorneys need to understand the intricacies of the FRCP and make sure that productions are in full compliance. Simply populating a Privilege Log with “data” does not mean that you have satisfied the requirements. For better or worse, eDiscovery procedures are complicated and require expertise and experience by attorneys, support staff and eDiscovery vendors. Make sure that your team is adequately staffed so you provide your client with the best representation.
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