E-mail E-Discovery - Can I Have Attachments With That Order?

E-mail E-Discovery - Can I Have Attachments With That Order?

   By Dennis Kiker

Abu Dhabi Comm. Bank v. Morgan Stanley, 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) presents an interesting, but, I would have thought, pretty simple question:  When a party produces e-mail, must it also produce non-privileged attachments?  In a well-researched and thorough recommendation ultimately adopted by the court, the special master concludes that there is no "ironclad legal standard" governing production of e-mail attachments, and that there is some support for both sides of the debate.  On the side of treating attachments as separate items for purposes of production, the opinion notes the following:

  • Most courts require e-mails and their attachments to be identified separately assessing privilege.
  • Conceptually, at least, the relevance of each item must be considered independently.


In support of requiring production of attachments with their parent e-mails, the opinion cites:

  • Case law that implies that attachments should be produced with e-mails, at least in the context of the format of production.
  • The "completeness" rule of FRE 106 (allowing a party to require the introduction of missing portions of documents introduced by the opposing party)
  • Case law finding that production of e-mails with their attachments satisfies FRPC 34(a)'s "usual course of business" production option.
  • Anecdotal and secondary sources that suggest that producing e-mails with their attachments is the "prevailing practice."

In a very Sedona-like result, the special master ultimately concludes that the best practice is for the parties to hammer these issues out ahead of time.

So, what do I think?  Well, the number of bullet points alone weighs in favor of including non-privileged attachments.  But, since that is not a very persuasive argument, here is my real answer: I think parties should follow the staple rule.  See, e-mails are not really documents.  They are really envelopes, inside of which can be a bunch of stuff.  In addition to the address information on the outside (without which the envelope would not be much good as "mail"), there is usually, but not always, a written message inside - and sometimes a bunch of other stuff.  Attachments.  Whether or not all of that other stuff is conceptually part of the e-mail might be subject to debate, but, my answer would be that it is.  For me, the real question is this: where is the staple?

In my view, the message and its attachments are stapled together - figuratively speaking, of course, but even our vernacular argues for the staple rule.  I send you an e-mail message saying, "attached are the documents you requested."  And I attach the documents.  Thus, I have stapled the message and its attachments together, such that they are now a single item for purposes of the communication and for later production.  Absent some privilege that would justify removing the staple and separating the documents so that the privileged ones can be withheld, they should go together.  To do otherwise just because one of the attachments is not really relevant to the case would be akin to removing page 3 of a six-page letter because it had no relevant information on it.  Why?  Because I have taken two separate things - a message and another item and combined them into one with the magic of the staple.  I can redact page 3, but I can't just pretend it was never part of the document.  In my view, once I have used a stapler on some formerly discrete documents, I have created a new one, and that's the one that I have to live with.

Are there exceptions?  Not really.  Some might argue about where that staple is placed, or if it exists in the first place.  For example, I might send you a series of photographs by e-mail, six of our recent hot dog eating contest, and one that I included inadvertently.  (I can explain that picture later.  Just delete it for now.)  No written message.  No context.  Not even a subject line.  Some would argue that the photos are not stapled at all.  It's just an envelope with some loose photos in it.  The fallacy is that there is no message.  The message is not written, but the sheet of paper is there with the photos attached.  Just because I didn't write any words doesn't mean I didn't get out my stapler.

Is there a way around this?  Sure.  Communicate better.  Limit your e-mail messages to a single topic and attach only information related to that message and that topic.  Then, you'll never have to wonder whether the attachment and message go together.  Once you've started communicating better, you can work on the other 10,000 people in the company.  Until then, you'll just have to live with the staple.