Separate Links or Whole Chain: Emails and Privilege Logs

By Lucius T. Outlaw III, Mayer Brown LLP

For anyone who has put together a privilege log since the proliferation of email, the “forward” and

“reply” buttons likely have caused many headaches. Email chains containing multiple emails

present an immense challenge for attorneys who are responsible for reviewing emails for

privilege and deciding which emails to withhold and list on a privilege log.

The intersecting issues

of email strings, privilege and privilege logs can be confounding. As one court succinctly put it,

“[e]mail strands present unique problems.”

Email strings may span over days, involve multiple

and differing recipients and senders and mix privileged legal communications with non-legal,

factual communications.

When creating a privilege log, one question dominates: whether to log the email string as a single

document or to log each email in the string as a single document.

Courts, litigants and experts

have been divided over the answer to this question from the start.

Recently, however, the trend

among courts has been moving overwhelmingly in one direction – requiring litigants to log

separately each email in a chain.

From the Split to the Modern Trend

When a litigant withholds discoverable material on privilege grounds, a privilege log necessarily

must follow. Rule 26(b)(5)

of the Federal Rules of Civil Procedure governs the content and

production of privilege logs. The rule provides that a privilege log must “describe the nature of the

documents, communications, or tangible things not produced or disclosed – and do so in a

manner that . . . will enable other parties to assess the [privilege] claim.”

For the privilege log

drafter, the rule begs the question: is listing an email chain as a single document sufficient to

allow the opposing party and the court to assess the privilege claim, or must each email in the

chain stand on its own and therefore be listed separately?

Advocates of the single-entry school of thought often analogize email strings to group

conversations with an attorney.

Their reasoning is that an email string is a continuing

conversation involving multiple participants that is shared with an attorney, so it should be

afforded the same privilege considerations as if the group conversation was held in a room where

an attorney was present and the conversation was memorialized in writing. This analogy has

received scant approval from courts. In fact, even the most often-cited case in support of the

single-entry concept – United States v. ChevronTexaco Corp. – offers neither much discussion of

the privilege log issue nor an endorsement of the analogy.

A number of courts, however, have expressly rejected the analogy.

The court in In re Universal

Service Fund identified three key differences between an email chain and a group conversation

with an attorney: (1) the temporal span of an email chain can be days and even weeks; (2) the

cast of senders and recipients in a chain often vary which results in inconsistencies concerning

who received what parts of the chain; and (3) some emails in a chain that the attorney receives or

sends may seek or render legal advice while others may contain purely factual or business

information that is non-privileged.

Due to these differences the court “strongly encourage[d]

counsel, in the preparation of future privilege logs, to list each e-mail within a strand as a

separate entry.”

The court recognized that separately logging emails in a chain is a laborious

task that is done at great expense to clients,

but stated logging emails separately “is essential to

ensuring that privilege is asserted only where necessary to achieve its purpose.”

Over the years, a number of courts have followed the lead of In re Universal Service Fund and

required that each email in a chain be logged separately.

Courts reason that requiring separate

entries prevents against parties trying to shield non-privileged communications from future

discovery by having a policy of copying counsel on emails or forwarding to counsel email

Originally published by Bloomberg Finance L.P. Reprinted by permission.

chains.

More importantly, to these courts, a litigant’s ability to evaluate and challenge an

opposing party’s privilege claims for numerous emails in the chain would be severely hampered if

email chains were allowed to be logged as single documents.

A Middle Ground Lost

In 2007, an Illinois district court established a middle ground, but it was short lived. In Muro v.

Target Corp., the magistrate judge ruled that the “failure to individually itemize emails made

[Target’s privilege] log inadequate because this defect violated Rule 26(b)(5)’s requirement that a

log include enough information that an opposing party can assess the applicability of privilege.”

The district court sustained Target’s objection to the magistrate’s ruling,

relying heavily on the

U.S. Supreme Court’s holding in Upjohn Co. v. United States that “the fact that non-privileged

information was communicated to an attorney may be privileged, even if the underlying

information remains unprotected.”

For the purposes of email discovery and privilege logs, the

Muro court understood “Upjohn to mean that even though one e-mail is not privileged, a second

e-mail which forwards that prior e-mail to counsel might be privileged in its entirety.”

Therefore,

while the underlying emails may not be privileged, the act of forwarding those emails to counsel

for the purpose of seeking legal advice triggers privilege that protects the entire chain. Otherwise,

the court recognized, a diligent opposing counsel could penetrate a party’s attorney-client

privilege by using a privilege log and produced material to determine the content of the

communications and materials that the party forwarded to counsel.

There is one small and easily missed key to the Muro court ruling that swings it from the single-

entry concept back to the middle. Under the court’s ruling, a litigant can log an email chain as a

single document only if the non-privileged emails of the chain are otherwise disclosed.

This

significant prerequisite ensures that litigants are not able to bury non-privileged communications

in email chains that are sent to an attorney, while also protecting the privileged act of forwarding

emails to an attorney for the purpose of seeking legal advice.

Rhoads

In 2008, a Pennsylvania district court seemed to embrace Muro, but in the end turned the

decision on its head. In Rhoads Industries, the court seemingly praised the Muro court’s

reasoning and “sound interpretation” of Upjohn.

Yet the court concluded that Muro’s approach

require[s] that each version of an email string (i.e. a forward or reply of a previous email

message) must be considered as a separate, unique document . . . [and therefore] each

message of the string which is privileged must be separately logged in order to claim

privilege in that particular document.

This conclusion directly conflicts with the language and intent of Muro.

The Rhoads court attempted to establish a distinction between emails with an attorney intended

to obtain legal advice versus those that are part of routine business affairs and are eventually

forwarded to an attorney as part of a chain.

To do so, the court adopted the much-criticized

email chain-conversation analogy,

but it is a distinction of no effect because the court held that

both categories of emails must be separately logged if the party is relying on a privilege claim to

withhold them. According to the court, the failure to separately log the emails is cause for the

sanction of compelled production.

Better Safe Than Sanction

To date, there is still little clarity regarding how email chains are to be logged. In light of Rhoads,

In re Universal Service Fund and similarly-leaning cases, the safe practice is to log each email in

a chain separately. There are, of course, other factors that will influence this decision, such as

financial resources, cost considerations, discovery deadlines and concerns about tipping

opponents to the substance of attorney-client communications. Yet, in weighing these factors and

making the final decision, litigants need to be aware that failure to log each email may result in

sanctions that may include the compelled production of privileged emails.

Lucius T. Outlaw III is a partner with the Washington, D.C. office of Mayer Brown LLP. He litigates

complex civil and white collar matters. His recent engagements include representing individuals

and entities in insurance fraud prosecutions, accounting and securities fraud prosecutions,

internal investigations, shareholder class actions, False Claims Act matters, political corruption

investigations and Foreign Corrupt Practices Act prosecutions and investigations. He can be

reached at loutlaw@mayerbrown.com

. Janie McCutchen of Mayer Brown LLP contributed to this

article.

When referring to emails, the terms “chains,” “strings” and “threads” are used interchangeably in this

article.

Thompson v. Chertoff, No. 06-cv-00004, at *2 (N.D. Ind. Nov. 15, 2007).

There are, of course, many other important preceding privilege issues when reviewing emails, such as

does the email involving an attorney reflect a legal or business purpose? This article concerns the drafting of

a privilege log after the privilege determinations have been made.

Compare United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1074 n.6 (N.D. Cal. 2002) (“With

respect to each series of emails for which Chevron asserts protection under the privilege, Chevron breaks

the series down into each discrete e-mail message. In our view, such a representation of the document is

misleading. Each e-mail/communication consists of the text of the sender’s message as well as all of the

prior e-mails that are attached to it. Therefore, Chevron’s assertion that each separate e-mail stands as an

independent communication is inaccurate.”) (emphasis in original) with In re Universal. Serv. Fund Tel.

Billing Practices Litig., 232 F.R.D. 669, 674 (D. Kan. 2005) (“the court strongly encourages counsel, in the

preparation of future privilege logs, to list each e-mail within a strand as a separate entry”).

Fed. R. Civ. P. 26(b)(5)(A)(ii).

See, e.g., In re Universal Service Fund, 232 F.R.D. at 672; see also, Rhoads Indus., Inc. v. Bldg. Materials

Corp. of Am., No. 07-4756, 2008 BL 264050

(E.D. Pa. Nov. 26, 2008) (“An email string may be analogous to

a meeting that takes place in a conference room between attorney and client for the purpose of seeking

legal advice.”).

241 F. Supp. at 1074 n.6 (N.D. Cal. 2002) (“With respect to each series of emails for which Chevron

asserts protection under the privilege, Chevron breaks the series down into each discrete e-mail message.

In our view, such a representation of the document is misleading. Each e-mail/communication consists of

the text of the sender’s message as well as all of the prior e-mails that are attached to it. Therefore,

Chevron’s assertion that each separate e-mail stands as an independent communication is inaccurate.”)

(emphasis in original).

In re Universal Service Fund, 232 F.R.D. at 673.

Id.

Id. at 674.

Id.

Chemtech Royalty Assocs., L.P. v. United States, Nos. 05-cv-00944, 06-cv-00258, 07-cv-00405, at *3

(M.D. La. Mar. 30, 2009) (“Asserting privilege for an entire e-mail thread in the privilege log, but only

describing the last message in the thread is deficient.”); Baxter Healthcare Corp. v. Fresenius Med. Care

Holding, Inc., No. 07-cv-01359, 2008 BL 229777

, at *1 (N.D. Cal. Oct. 10, 2008) (ordering defendants to

produce a privilege log that “separately identifies the author, recipient(s), copyee(s), and blind carbon

copyee(s) for each logged email communication regardless of whether the communication is part of an email

string”); Thompson, 2007 WL 4125770, at *2 (“each individual email in a string must be analyzed

separately”); In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789

, 812 (E.D. La. 2007) (“E-mail threads (a

series of e-mail messages) in which attorneys were ultimately involved were usually inappropriately listed on

the privilege log as one message.”); C.T. v. Liberal Sch. Dist.,Nos. 06-cv-02093, 06-cv-02360, 06-cv-02359,

2007 BL 21826

, at *5 (D. Kan. May 24, 2007) (ordering plaintiff to submit an amended privilege log that

listed each email in a string as a separate entry); see also Se. Pa. Transp. Auth. v. CaremarkPCS Health,

L.P., 254 F.R.D. 253, 264-65 (E.D. Pa. 2008) (analyzing emails in chain separately to rule on defendant’s

privilege claims).

Baxter Healthcare Corp., 2008 BL 229777, at *1 (“Each email is a separate communication, for which a

privilege may or may not be applicable. Defendants cannot justify aggregating authors and recipients for all

emails in a string and then claiming privilege for the aggregated emails.”); Freeport-McMoran Sulphur, LLC

v. Mike Mullen Energy Equip. Res., Inc., Nos. Civ. A. 03-1496, Civ. A. 03-1664, at *20 (E.D. La. June 4,

2004) (“A document sent from one corporate officer to another is not privileged simply because a copy is

sent to counsel.”).

See In re Universal Service Fund, 232 F.R.D. at 673 (“Obviously, a sufficient (i.e., reasonably detailed)

privilege log is vital if litigants and judges are to determine whether documents have been properly withheld

from discovery.”); In re Vioxx, 501 F. Supp. 2d at 812 (“Simply because technology has made it possible to

physically link these separate communications (which in the past would have been separate memoranda)

does not justify treating them as one communication and denying the demanding party a fair opportunity to

evaluate privilege claims raised by the producing party.”).

250 F.R.D. 350, 362 (N.D. Ill. 2007).

Id. at 362-63.

Id. at 363 (citing Upjohn, 449 U.S. 383, 395-96 (1981)).

Id.

Id. (“A party can therefore legitimately withhold an entire e-mail forwarding prior materials to counsel,

while also disclosing those prior materials themselves.”); see also Apsley v. Boeing Co., No. 05-cv-01368,

2008 BL 12035

, at *1 (D. Kan. Jan. 22, 2008) (“Although Boeing listed [on its privilege log] entire e-mail

strings, it redacted only the portion of the string that contained legal communications.”).

254 F.R.D. at 240-41.

Id. (internal footnote and citation omitted).

250 F.R.D at 363 (“Therefore, the court sustains Target’s objection to the Magistrate Judge’s ruling that its

privilege log was inadequate for failure to separately itemize each individual e-mail quoted in an e-mail

string.”).

254 F.R.D. at 241.

Id. at 241 n.5 (“In the world of electronic communications, a series of email messages, among people

employed by the client but working in different locations, can replace the meeting [with an attorney] and

subsequent letter.”).

Id. at 241.