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Expert Opinion Editorial: When Are E-mail Strings Privileged?
Jill Griset explains detail of a recent case in which courts held that e-mails strings are not privileged unless each individual e-mail in a string is separately identified on the privilege log. PR9.NET August 31, 2007 - CHARLOTTE, N.C. - In the recent case of Muro v. Target Corp., 2007 WL 1630407 (N.D. Ill. June 7, 2007), the court held that e-mails strings are not privileged unless each individual e-mail in a string is separately identified on the privilege log. Frontline prevention is the best way to protect privileged communication. Counseling clients regularly on confidentiality and limitations of further dissemination is paramount. Counsel should also seek client assistance in keeping abreast when information is forwarded or discussed, so it can be properly logged and assure privileged information stays privileged. In Muro v. Target Corp., the plaintiff (Muro) moved to compel the production of documents (primarily e-mails) that defendant (Target Corp.) withheld on privilege grounds. The court held that Target did not carry its burden of demonstrating that the privileged communications were made with an expectation of confidentiality and required Target to produce the documents. The court primarily based its ruling on the fact that Target's employees forwarded the e-mails at issue to a number of other Target employees without any discussion of the confidential nature of the communications or a limitation on further dissemination. The court said that the practice of forwarding the e-mails at issue reflects a style of dealing with internal corporate communications that is inherently at odds with the basic principle that allow the withholding of otherwise-discoverable information as privileged, and an exception to the general rule of discoverability. The court held that it is difficult to imagine how communications circulated among such a large number of corporate employees without, or in spite of, an expression of confidentiality or limitation on further dissemination. In many instances, the information was intermingled with non-privileged business discussion. This led the court to question if the information had been created with the intention of being attorney-client privileged. The court also held that Target's failure to describe separately on its privilege log each message within a string was improper. In a large document production, it is very common for parties' attorneys to identify only the last e-mail in a string on the privilege log because the last e-mail in a string is the only e-mail whose data can be captured electronically. Separately logging each e-mail within a chain is a time consuming and expensive manual process. The court's focus on Target's failure to separately log each e-mail in a chain is troublesome, as this approach could substantially increase litigation costs in large cases. It may be explained, however, by the fact that the court was considering only 89 privilege log entries. It is possible that in a case involving hundreds or thousands of privilege log entries, the court would not reach the same decision. The information in this E-Discovery article should not be interpreted as legal advice with respect to specific situations. For additional information on this or any other e-discovery topic, please contact any member of the E-Discovery Practice Group listed above. # # #
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About Helms Mulliss & Wicker HMW is recognized as one of America’s Best Law Firms by Corporate Board Member magazine, ranked as a Top Ten Bond Counsel by The Bond Buyer and is named a Go-To Law Firm by Corporate Counsel magazine. The firm employs more than 135 lawyers, 20 of whom have been designated Super Lawyers in the 2007North Carolina Super Lawyers magazine. HMW focuses on three practice groups: commercial litigation, complex finance and corporate law. Within the practice groups, specialty areas include: government relations, securities, mergers & acquisitions, employer services, private equity and others. The firm represents Fortune 100 companies, the nation’s largest financial institutions as well as many high-growth and start-up companies. Helms Mulliss & Wicker maintains offices in Charlotte, Raleigh and Wilmington, NC. For additional information, visit www.hmw.com. |
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