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Attorneys nationwide are preparing to practice under the new electronic discovery amendments to the Federal Rules of Civil Procedure, which became effective on Dec. 1. The amended rules require parties in civil litigation to confer about e-discovery issues at the earliest time practicable. See Amended Fed. R. Civ. P. 26(f). One of the matters that parties should be prepared to address during this initial discussion is the assertion of privilege claims as to e-mails that are part of larger “strings” comprising both privileged and nonprivileged e-mails. Focusing on this issue before discovery begins may enable attorneys to decrease the costs of discovery and reduce the risk of court-ordered sanctions. Increasing reliance on e-mail is a fact of life in today’s business and legal environments. Yet every innovation in technology that improves our ability to communicate carries corresponding burdens for lawyers and their clients. The falling costs of storing vast amounts of data, coupled with the fear of being accused of destroying material that companies may be obligated to retain, have led to the retention of increasing amounts of data for longer periods of time. Among the problems this creates for litigators is the increased burden of reviewing vast quantities of e-mails, and identifying and asserting claims of attorney-client privilege and work-product protection over electronic documents. E-mail strings can be key evidence over and above the individual e-mails included in them, particularly in cases that turn on the question of who knew what, and when. For this reason, attorneys naturally consider a string of e-mails to be a single document. Yet an opponent may argue that the occurrence of one or more privileged e-mails in a string does not necessarily bring nonprivileged e-mails that are also in the string within the protection of the privilege. The assertion of privilege claims over e-mail strings raises several questions: May e-mail strings mixing privileged and nonprivileged information be noted in a privilege log as a single entry? What consequences might there be for improperly logging e-mail strings? Do the amended rules of civil procedure relating to electronically stored information offer any opportunities to reduce the burden associated with e-mail review and privilege logs? Asserting claims of privilege Rule 26(b)(5) sets forth the procedure by which claims of privilege or protection are made. In substance, the rule provides that when a party withholds information that otherwise is discoverable on the ground that the information is subject to the attorney-client privilege or work-product protection, each document or category of documents must be described in a way that permits other parties to assess the claimed privilege or protection, without revealing the privileged information. A showing of privilege or protection for each document or category of documents withheld must be made. See Williams v. Johanns, 235 F.R.D. 116, 124 (D.D.C. 2006). Typically, a privilege log is created, listing each document or communication; its date; a description of the material; the name of the author, recipients and/or person for whom the document was prepared; and any privilege claim asserted. Comments to the rule, however, recognize that that burden may play a role in the level of detail required. Comments state that “[d]etails concerning time, individuals or general subject matter may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged and protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden.” Should a court determine that claims of privilege or protection were not properly asserted, the delinquent party may be subject to sanctions under Fed. R. Civ. P. 37(c). Sanctions can range from paying the reasonable expenses of the party seeking discovery, including attorney fees, to a court-imposed waiver of privilege. While no party wants to incur unnecessary costs, it is the forced waiver of privilege that is most feared. This is an extreme sanction reserved for the worst offenses, requiring “unjustifiable delay, inexcusable conduct [or] bad faith in responding to discovery requests.” U.S. v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003) (citing First Saving Bank F.S.B. v. First Bank Sys. Inc., 902 F. Supp. 1356, 1361 (D. Kan. 1995)). If large quantities of e-mails that lawyers must increasingly deal with are not logged appropriately, clients are at risk. It is not uncommon for privilege logs to reflect a string of e-mails consisting of both privileged and nonprivileged communications under one entry. There are valid reasons for doing so, such as saving attorney resources, reducing costs to clients and a belief that a string of e-mails is a single document. Until recently, there has been no clear indication that this practice fails to satisfy a party’s discovery obligations. However, one magistrate judge now has held that it violated Rule 26(b)(5). Counsel should be aware of the pitfalls of logging strings of e-mails merely as single documents, should other courts follow Magistrate Judge James P. O’Hara’s approach in Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669 (D. Kan. 2005). Fresh precedent In Universal Service Fund, the defendant logged 35 e-mail strings, comprising 131 separate e-mails, with single entries on its privilege log. The defendant argued that an e-mail string is more akin to a transcript of a conversation or minutes of a meeting than to a group of separate communications; therefore, a string on a single topic constituted a single document for purposes of the privilege log. The defendant cited several cases in support of its claim. See Freeport-McMoran Sulphur LLC v. Mike Millen Energy Equipment Resource Inc., No. Civ. A. 03-1496, Civ. A. 03-1664, 2004 WL 1299042, at 11-19 (E.D. La. June 3, 2004) (addressing claims of attorney-client privilege and/or work-product protection for communications found in e-mail threads); see also U.S. v. Segal, No. 02-CR-112, 2004 WL 830428, at 1-7 (N.D. Ill. April 16, 2004) (finding that two documents identified as being e-mail strings did not contain privileged communications)). The defendant also relied on commentary from a law review article (see Jonathan B. Ealy & Aaron M. Schutt, “What-If Anything-Is An E-Mail? Applying Alaska’s Civil Discovery Rules to E-Mail Production,” 19 Alaska L. Rev. 119, 122 (2002) (stating that “[d]ue to the ease and speed of communication, the style of e-mails is much more like that of a conversation than a drafted document.”)). The court found that the cases, which addressed privilege issues as to e-mail strings logged as single documents, but which did not specifically address the propriety of logging e-mail strings as single documents, did not sufficiently analyze the issue, and therefore were unpersuasive. The court also rejected the argument that e-mail strings are like meeting minutes or transcripts of conversations. The court noted that unlike meetings or conversations, e-mail strings often span multiple days; recipients of e-mails come and go as the string grows, including those outside the attorney-client relationship; and strings often include purely factual and otherwise nonprivileged communications. Particularly important to the court was the effect that listing e-mail strings as single documents could have on Rule 26(b)(5). The court found that the practice could result in “stealth claims of privilege which . . . could never be the subject of meaningful challenge by opposing counsel or actual scrutiny by a judge.” Id. The court concluded that without the detail of a single log entry for each e-mail, determining whether the e-mails contained in the string were properly withheld would be impossible. The court noted one situation in which these concerns may not be present: when each e-mail in a strand concerns “a distinct and identifiable set of individuals, all of whom are clearly within the attorney-client relationship in which legal advice is being sought or given.” Id. In those distinct cases, the court said, logging the string with a single entry “might be regarded as sufficient.” Id. Although the court recognized the burden of individually logging the e-mails in a string claimed to be privileged, it said that doing so was necessary to ensure that the attorney-client privilege and work-product protections were asserted only when appropriate. Ultimately, the court did not impose a waiver sanction in Universal Service Fund, because it concluded that the defendant acted in the good-faith belief that its conduct was proper, in unique circumstances in which little to no guidance existed. However, the court noted that its decision not to impose a waiver sanction was limited to the unique circumstances of the particular case before it. What next? Should other courts take the same position as Universal Service Fund, counsel would have a choice between logging each and every individual e-mail in a string separately, or risking a sanction-including, potentially, a forced waiver of the attorney-client privilege or work-product protection. The consequences of waiver could include a malpractice claim against the attorney by the client. How likely is such a sanction? More often than not, courts will allow the party claiming privilege to cure a deficient log before imposing sanctions. If this opportunity presents itself in the context of logging e-mail strings, counsel will wish to take advantage of it. However, there is no guarantee that a party will be given such an opportunity to cure. Although it is not rare, courts in several jurisdictions have imposed the waiver sanction for failure to produce required privilege logs in a timely and proper fashion. See FG Hemisphere Assocs. LLC v. Republique Du Congo, No. 01 Civ. 8700 (SAS)(HBP), 2005 WL 545218, at 5-7 (S.D.N.Y March 8, 2005) (waiving privilege that might have existed for failure to timely produce privilege log); Felham Enters. (Cayman) Ltd. v. Certain Underwriters At Lloyd’s, No. Civ. A. 02-3588 C/W 0, 2004 WL 2360159, at 3 (E.D. La. Oct. 19, 2004) (privilege assertions deemed waived because objections were not timely and the log failed to adequately describe the communications claimed to be privileged); Employers Reinsurance Corp. v. Mid-Continent Casualty Co., No. Civ. A. 01-2058-KHV, 2002 WL 1067446, at 5 (D. Kan. Apr. 18, 2002) (upholding magistrate judge’s decision requiring production of otherwise privileged documents due to inadequate privilege log descriptions); Mold-Masters Ltd. v. Husky Injection Molding Sys. Ltd., No. 01C1576, 2001 WL 1558303, at 2-3 (N.D. Ill. Dec. 6, 2001) (requiring production of attachments to documents not separately entered on privilege log); Starlight Int’l Inc. v. Herlihy, No. Civ. A. 97-2329-GTV, 1998 WL 329268, at 3 (D. Kan. June 16, 1998) (privilege objections deemed waived for failure to provide a privilege log). It is worth noting that, in most of the cited cases, the sanctioned parties had opportunities to cure the deficiencies before the filing of a motion to compel. In each of these cases, the court-imposed waiver was limited to documents that were improperly logged or were not listed on a privilege log at all. Even when courts follow the rationale of Universal Service Fund, they may recognize a basis for different treatment in differing circumstances. One possible basis for distinction is the number of e-mails at issue. In Universal Service Fund, compliance with the magistrate judge’s ruling required logging at most 131 separate e-mails. A different court may conclude that the burden of individually logging each e-mail in a string claimed to be privileged outweighs the benefit when thousands, instead of hundreds, of e-mails are at issue. Again, amended Rule 26(f) instructs parties to address privilege issues involving electronically stored information “as soon as practicable,” and in any event no fewer than 21 days before a scheduling conference is held or a Rule 16(b) scheduling order is due. Among other things, Amended Rule 26(f) mandates that the parties discuss “any issue relating to claims of privilege or of protection as trial-preparation material,” including procedures for asserting privilege claims post-production, and whether to ask the court to enter an order memorializing any such agreement. The Committee Note explains that the conference is a chance to reduce the burden of reviewing large quantities of e-mail and asserting attorney-client privilege or work-product protection by minimizing the risk of waiver. Among the agreements discussed are the kinds of “clawback” or “quick peek” agreements occasionally used in complex, multidistrict litigation. These agreements allow the parties to produce all relevant documents before a privilege review is conducted, and to assert claims for privilege or protection after production has been made. When memorialized in a court order, parties to the agreements are deemed not to have waived the privilege as between themselves. See Committee Note to Rule 26(f) (2006 Amendments). Such agreements may be of limited usefulness, however. At least one court has held that production to an opposing party under such an agreement constitutes a waiver of the privilege as to third parties. See Bowne of New York City Inc. v. AmBASE Corp., 150 F.R.D. 465, 478-79 (S.D.N.Y. 1973). Moreover, even if the privilege is deemed not waived, merely seeing the other side’s privileged documents may give opposing counsel a significant strategic advantage. Further issues for discussion The amended rules do not address whether parties could reduce the burden of asserting claims of privilege or protection over e-mails by entering into an agreement to log e-mail strings as single documents. This would be a possible subject for discussion, however, at the early conference concerning e-discovery. Universal Service Fund is not binding on any court, but at the time this article went to press it was the only published judicial guidance on the specific issue of asserting claims of attorney-client privilege and work-product protection over e-mail strings. Parties considering the practice of logging e-mail strings as single entries in a privilege log should consider whether it is likely that the court will follow the Universal Service Fund rationale, and if so, whether there are any distinguishing circumstances that might persuade the court that the requirements of Universal Service Fund should not apply in the case at hand. Jennifer M. Moore, a former assistant U.S. attorney for the Southern District of New York, is a litigation partner in the New York office of Sutherland Asbill & Brennan. She can be reached at [email protected]. Gregory S. Kaufman is a litigation associate in the firm’s Washington office, and can be reached at [email protected].

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