The recent decisions in Absolute Elec. Contr. v. IBEX Constr.1 and 1301 Properties Owner v. Abelson2 addressed the use of emails on motions to dismiss and for summary judgment and, in these cases, the courts did not sustain objections directed against their usage where, even without necessarily being accompanied by an affidavit from someone with personal knowledge of the emails, there is sufficient indicia of the emails’ authenticity and their content was not in dispute. Then in Netologic v. Goldman Sachs Group,3 as it relates to the production of emails, the court noted what a party opposing the production of ESI always argues—that just because emails concern an action does not mean that they are “material and necessary” to either party’s claim or defense.

Courts in two recent decisions, U.S. Bank N.A. v. Lightstone Holdings4 and Meissner v. Tracy Yun,5 ruled that email chains reflecting communications with counsel were not privileged and subject to production because they were not intended to be confidential, reflected the provision of business advice and not predominately legal advice or the client for the purposes of the privilege was the entity and not a principal of the entity who was trying to assert it.

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