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You Can Address the Inclusive Emails in Discovery Without Producing Them

Written by Doug Austin, Editor of eDiscovery Today

One of the biggest time savers in document review is the ability to identify email threads and review only the fully inclusive emails in the thread (i.e., the ones that include unique information). That’s not always the last email in the thread (as there can be some side conversations within a thread), but discovery platforms today are great about finding those unique emails within a thread and suppressing the rest during review.

As any of us can relate, sometimes email conversations can go on for days, weeks or even months, so every email saved in review is time and money saved as well.

Recently, I covered a case that a lot of people noticed, because of how it handled producing evidence from email threads. It’s an important case to understand – both in terms of what you should do, and in terms of what you don’t have to do regarding email threads.

In re Actos End Payor Antitrust Litigation

This is a complex antitrust class action (which I covered here) over alleged false patent claims made to the FDA regarding Takeda’s diabetes drug ACTOS. It was filed way back in 2013 – yet, rolling productions didn’t begin happening until February of this year after extensive motion practice and appeals. Even the ESI protocol the parties agreed to was approved by the Court way back in March 2015.

Despite all that, there was still a dispute over the initial rolling productions. In its production, Takeda used email threading, “by which a party reviews and produces the most-inclusive email in a thread.” The plaintiffs objected and filed a motion to compel Takeda to produce lesser included emails and their associated metadata (they also sought privilege log entries for earlier-in-time emails part of email threads redacted or withheld for privilege).

The plaintiffs claimed that excluding the lesser included emails made it more difficult to search for all correspondence within a date range and to see recipients of certain emails, especially anyone was blind copied on lesser included emails, even though this information was among the metadata the parties agreed in the Discovery Protocol to produce. This is a great point – if I were the requesting party, I would want that metadata too.

As a result, the judge, finding that the suppression of lesser included emails wasn’t specifically permitted by the ESI protocol, ordered Takeda to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails”. The judge also ordered the parties to meet and confer on privilege logs, related to the email threading issue.

What Does The Takeda Case Ruling Mean to You?

When I covered this case, some people asked me if this means they can’t take advantage of the email thread identification capability within their eDiscovery platform anymore. No – it doesn’t mean that at all.

What it does mean is that you should discuss how to handle email threads up front – either in your meet and confer discussions or documented within your ESI protocol (if you have one). This will avoid the type of dispute that happened in this case.

If the requesting party expects to receive the metadata for the lesser included emails, that’s OK. You can still exclude the lesser included emails during review and include those emails (or just the metadata for those emails, depending on the up-front agreement) that are part of responsive email threads during production. Your eDiscovery platform should enable you to apply responsive tags to the entire email thread to produce those lesser included emails too.

If any of the fully inclusive emails are privileged or have content to be redacted, you can (and must) apply those privilege tags to the lesser included emails as well – and redact the same content in the lesser included emails that you redact in the fully inclusive emails. If you’re producing the lesser included emails, you must redact the same content there; otherwise, you could inadvertently disclose information you successfully redacted in one place but not the other.

Conclusion

Probably one of the biggest lessons learned in this case is the importance of ESI protocols and being prepared to keep your ESI protocol template (if you have one) evergreen, as there are always unexpected issues that come up that you need to address. We not only saw that in this case, but we also saw it in the Nichols v. Noom case that I covered last year, involving hyperlinks to files within emails (a.k.a., “modern attachments”), which have become a big challenge in discovery.

Keeping your ESI protocol evergreen doesn’t just involve updating it to reflect your own personal experiences from using them in cases – it also involves keeping apprised of key case law decisions involving disputes regarding ESI protocols. Learning from the mistakes of others helps you avoid those mistakes yourself!

And for more educational topics from me related to eDiscovery, information governance, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!

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