Pretrial and Trial Issues in the Email-Intensive World

Sending emails—proceed with caution. One of the most important hurdles litigators face today, due to the increased and seemingly never-ending use of email, involves the waiver of privileges. It is not uncommon for attorneys to send dozens of emails each day; sometimes this number can exceed 100 emails. Each and every email presents a new opportunity for an attorney to waive the attorney client privilege, work-product doctrine, the joint defense (common interest) doctrine, or a combination of these.

It is vitally important for attorneys to take a moment, before sending emails, to review the desired recipients of the emails. In a world where email software auto-fills the names of email recipients, it is all the more important to ensure your email is going to your client "Richard Small" and not your opposing counsel "Richard Smith." It is critical to pause, before hitting the send button, and review the names. Once you get in the habit of doing so, it becomes second nature.

Responding to emails—equally dangerous territory. When attorneys make a mistake with email, it frequently occurs when responding to an email as opposed to sending an email from scratch. One common mistake attorneys make involves the response to a client email. It is not very uncommon for clients, particularly clients who are not well versed in attorney-client communications, to copy ("cc") their accountants, siblings, pastors, or others, when sending emails to their attorneys. First and foremost, you should advise your clients to refrain from doing so. Second, it is incumbent upon you, as the attorney, to be very careful before hitting the "Reply All" button. If you fail to do so, you can waive the attorney-client privilege and work-product doctrine relative to those communications.

Indeed, you might envision a scenario where you are communicating with all six of a client’s officers and directors; if the chief executive officer sends an email to you and the other officers, and also cc’s the company’s accountant, the communication might very well not be  privileged and be subject to production in a lawsuit. Your response to “all,” in which you outline your entire litigation strategy, might be fair game. Even if the email to which you are responding includes 10 or more recipients, take a moment to review each and every name to ensure the email is privileged before sending your response.

Advising clients about the use of personal email accounts and personal computers. When being retained by a new client, one of the first things an attorney should do is advise the new client, in writing, of the risks associated with email use. In fact, it is good practice to include a disclaimer in your engagement agreement. A sample disclaimer might read as follows:

Electronic Communication: Attorney advises Client of the risk of exchanging electronic information, including but not limited to through email. Client understands the risks of electronic conversations and consents to Attorney using Client’s provided email address.

Clients should be advised to use personal email accounts and should be instructed to avoid emailing the attorney from the client’s work computer. Otherwise, the opposing party, when seeking relevant documents, might argue that any emails between client and counsel sent using the client’s work email address or reviewed on or sent from the client’s work computer are not privileged because the client arguably waived the privilege by using a company email address or company computer because a nonparty, the client’s employer, has access to those communications and regularly reviews them.

The key inquiry is the element of confidentiality, which requires that the communication be made with the intent that it be held confidential and with the reasonable expectation and understanding that it will remain confidential. While there is case law supporting the principle that the mere use of email to transmit a confidential communication to an attorney does not, in and of itself, waive the privilege, there is also case law to the contrary. See, e.g., Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047 (Cal. Ct. App. 2011). Avoid the issue—persuade your client to follow your instructions. If your client fails to heed your advice, admonish him or her immediately to ensure it does not become a common practice.

Advising clients to keep emails “one on one.” Clients frequently believe they can make emails to third parties privileged by “copying” their attorney on the emails. Such is not the case. Emails or other correspondence do not become automatically privileged merely because an attorney is listed among those receiving a copy or “blind” copy, similar to the fact that the communications at a corporate meeting do not become privileged automatically simply because legal counsel is in the room. Unless the author of an email is attempting to convey the content of an attorney’s advice to others in the organization with a legitimate need to know, the attorney-client privilege will typically not apply.

Similarly, clients should be instructed to refrain from including third parties on any emails sent to your attention. If they keep the emails one on one, they can more likely ensure the emails will be privileged and not subject to discovery.

Email chains as a potential nightmare for privilege logs. When withholding discovery documents on the grounds that they are privileged, litigators typically have to prepare privilege logs identifying the sender and recipients of emails and providing a sufficient description of the emails to allow the opposing party to evaluate the asserted privilege. A common problem arises when the lawsuit involves significant email chains. Does the log need to identify 1,000 separate emails, or is each chain of the email logged separately? What are the rules here? Does the litigator need only to log the last email in the chain, or must each separate email be logged? There is a split of authority on this issue. See, e.g., Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev. 2013) (not requiring separate log entries); Dawe v. Corrections USA, 263 F.R.D. 613, 621 (E.D. Cal. 2009) (same); Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D. Ill. 2007); but see In re Univ. Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 673 (D. Kan. 2005); Stafford Trading, Inc. v. Lovely, 2007 WL 611252 (N.D. Ill. 2007).

Some courts find all emails within an email chain to be part of one communication, while other courts require each email within an email chain to be logged separately. It is important for practitioners to review the applicable law in their jurisdiction when preparing privilege logs to ensure that, as it relates to email chains, they are complying with the applicable rules.

Discovery of ESI. ESI has “context” information embedded within every file, known as metadata, which are frequently referred to as “data about other data.”

Common types of metadata include the author of a document, the date the document was created, the number of times the document has been viewed, the number of times the document has been revised, the person who last edited the document, and the date of the last revision. This information can be lost when a document is printed, and it can be altered easily when a document is copied.

In many cases, much if not most of the available metadata will not be particularly useful. The Seventh Circuit’s Electronic Discovery Committee Principles Relating to the Discovery of ESI recognizes this reality, suggesting that “noise” metadata need not be produced. (Principle 2.04(d)). Other courts have taken a similar course. However, the metadata that can be used will frequently be helpful and, in some instances, critical.

Among other things, metadata are useful relative to the electronic software that litigation counsel uses to filter, prioritize, and evaluate ESI. For example, an attorney can use ESI software to conduct search queries to obtain documents created within a specific time frame or to obtain documents created by a particular person.

In cases involving ESI, attorneys should not merely instruct their clients to copy everything to a thumb drive or digital video disc because the metadata will be lost in the process. Attorneys should similarly avoid the practice of simply having their clients print documents, scan them as PDF files, and email them to the attorney. This is an outdated, and frequently unacceptable, practice in a day and age where various tools are available to maintain original metadata.

Many federal courts have established default standards that govern the discovery of ESI information. Attorneys should be aware of whether the courts in their geographic area have established such standards. In addition, attorneys who venture into courts outside their local area, such as when they appear pro hac vice in a foreign lawsuit, should become familiar with the customs and practices in that court.

Parties are generally encouraged to address any ESI issues at the onset of litigation, such as during their Federal Rule of Civil Procedure 26(f) conference or, if in state court, prior to the commencement of written discovery. If ESI is relevant to the case, the parties should reach an agreement regarding how ESI will be produced, what types of metadata must be provided, and how the costs of ESI discovery will be handled.

ESI software can cost thousands of dollars. Should a small-town, small-firm attorney be expected to own and utilize such software? Increasingly, the answer is yes, assuming the attorney wants to litigate disputes that implicate ESI discovery. Indeed, a continually increasing percentage of courts consider document requests that seek the “native format” of documents (e.g., in electronic format with metadata intact) to be proper. If a party does not want to produce metadata, it should proactively object to such production or request a protective order that either precludes such production or requires the requesting party to pay the associated costs. If an attorney wants to litigate a dispute that implicates ESI, the attorney should be equipped with the necessary software to review, sort, and make use of the other party’s metadata. Third-party vendors are also available to provide such services.

Hearsay. Emails are generally hearsay. However, there are a few exceptions to the hearsay rule that can permit the introduction of emails at trial.
 
Business records exception: Is an email a business record, such that the hearsay rule does not preclude admission of the email into evidence? Federal Rule of Evidence 803(6)(B) allows for the introduction of records that are “kept in the course of a regularly conducted activity of a business.” For a record to be admitted as a business record, it must be (1) made in a regularly conducted business activity, (2) kept in the “regular course” of that business, (3) reflective of the “regular practice” of that business to make such records, (4) and made by a person with knowledge or from information transmitted by a person with knowledge.

Courts are in disagreement on whether emails can and should fall under the business records hearsay exception. Email is, typically, a more casual form of communication than other corporate records, such that it may not be appropriate to assume the same degree of accuracy and reliability. However, as email is more commonly used to communicate business matters both internally and externally, more formal paper records are becoming increasingly rare. See, e.g., United States v. Cone, 714 F.3d 197 (4th Cir. 2013); It’s My Party, Inc. v. Live Nation, Inc., 2012 WL 3655470 (D. Md. Aug. 23, 2012) (unpublished) (excluding emails); Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 622 n.163 (S.D.N.Y. 2008) (“e-mail created within a business entity does not, for that reason alone, satisfy the business records exception to the hearsay rule”); Monotype Corp. v. Int’l Typeface Corp., 43 F.3d 443 (9th Cir. 1994) (finding email does not become a business record simply because it is stored on a computer).

Then-Existing State of Mind or Condition: Federal Rule of Evidence 803(3) permits evidence that would otherwise constitute inadmissible hearsay if the evidence is a statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition. Rule 803(3) provides another avenue for potential admissibility of an email. See, e.g., Commonwealth v. O’Neill, 80 Mass. App. Ct. 1109, 954 N.E.2d 591 (2011) (table decision).

Admission by a party opponent. In addition to the “business records” and “then-existing state of mind” hearsay exceptions, many emails contain admissions by a party opponent and might be admissible as non-hearsay under Federal Rule of Evidence 801. See, e.g., Guidance Endodontics, LLC v. Dentsply Int’l, Inc., 663 F. Supp. 2d 1138 (D. N. Mex. 2009); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966 (C.D. Cal. 2006); In re Homestore.com, Inc. Secs. Litig., 347 F. Supp. 2d 769 (C.D. Cal. 2004); Vt. Elec. Power Co., Inc. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F. Supp. 2d 441 (D. Vt. 1999). However, courts will typically not permit employees’ email statements to be attributed to employers as a party-opponent admission unless the employee was involved in the decision-making process at issue or was otherwise in a particular position within the company, such that he or she was authorized to speak on behalf of the company. See, e.g., Johnson v. Weld County, Ohio, 594 F.3d 1202, 1209 (10th Cir. 2010); Harrison v. Formosa Plastics Corp. Tex., 776 F. Supp. 2d 433 (S.D. Tex. 2011) (alleged statements made by current employees not admissible because, inter alia, party failed to establish the current employees were authorized to speak on behalf of the employer); Jackson v. Sara Lee Bakery Grp., 677 F. Supp. 2d 1268 (N.D. Ala. 2009); Forest Labs., Inc. v. Ivax Pharms., Inc., 237 F.R.D. 106 (D. Del. 2006) (admissible if statement made within course and scope of employee’s employment). (Of course, even if an email is not admissible, it can be used to refresh the recollection of a witness.)

Authentication. Even if a trial attorney can overcome the hearsay rule, how does he or she authenticate email communications? The easiest way, of course, is to have the author of the email authenticate it. However, sometimes this is not possible because the author is unavailable.

Federal Rule of Evidence 901(a) provides that evidence is admissible if authenticated by “evidence sufficient to support a finding that the item is what the proponent claims it is.” Authentication can be established in various ways, including by testimony of a witness with knowledge that a matter is what it is claimed to be or by distinctive characteristics such as “appearance, contents, substance, [or] internal patterns . . . taken in conjunction with circumstances.” Id. at 901(b)(4).

In many instances, the party offering an email into evidence will have to rely on circumstantial evidence, such as email addresses, prior communications between the sender and recipient, evidence suggesting the information in the email is unique information the sender would likely have possessed, and testimony from the recipient of the email. See, e.g., United States v. Fluker, 698 F.3d 988 (7th Cir. 2012); EEOC v. Olsten Staffing Servs. Corp., 657 F. Supp. 2d 1029 (W.D. Wis. 2009). In addition, evidence of action taken in conformance with the content of an email has also been found sufficient. See, e.g., United States v Siddiqui,235 F.3d 1318, 1322–23 (11th Cir. 2000).