Tying up loose "strings and strands" in your privilege log - Muro v. Target Corp., --- F.R.D. ---, 2007 WL 1630407 (N.D.Ill. June 7, 2007)

In recent years, it has become commonplace for litigants to list attorney client or work product based emails in their privilege logs pursuant to Fed. R. Civ. P. 26(b)(5). However, the nature of corporate e-mail usage is such that, many times, individual e-mail messages are but snapshot components of longer e-mail strings or chains, and, over time, many privileged messages wind their way through electronic corporate corridors in a way that potentially erodes their once-protected status. This raises the difficult issue of whether, and to what extent, such e-mail correspondence is protected by the attorney client privilege or work product immunity and, if so, how they must be described in privilege logs so that the court and adversaries are on notice of the nature of the document being withheld, and the identities and roles of all recipients in the e-mail chain.

In a recent decision, the United States District Court for the Northern District of Illinois granted plaintiff’s motion to compel the production of corporate e-mail correspondence, some of which contained legal opinions, based upon the insufficiency of the defendant’s privilege log. In Muro v. Target Corp., — F.R.D. —, 2007 WL 1630407 (N.D.Ill. June 7, 2007), the court discussed the inadequacies of Target’s privilege log as to e-mail strings, strands and chains and set forth in detail the requirements for the maintenance of a privilege assertion in the context of such documents. While the opinion has ramifications for outside counsel charged with preparing privilege logs that meet the dictates of Fed. R. Civ. P. 2(b)(5), the court’s comments may raise particular concern on the part of in-house counsel seeking to ensure the appropriate protection for privileged electronic communications in today’s e-mail dominated corporate environment.

In Muro, Target asserted the attorney-client privilege as to a number of e-mail strings. The court noted that its initial log was inadequate on its face because, among other things, it only provided the e-mail subject line to describe each document and did not identify the attorney that took part in each allegedly privileged communication. Id. at *1. Target was ordered to provide a more detailed privilege log to satisfy its burden of establishing that the communications were privileged.

After review of Target’s revised privilege log and an in camera review of the documents at issue, the court found that Target had once again failed to meet its burden of establishing the basis for the privilege. However, hesitant to compel production of privileged documents, the court gave Target another opportunity to cure the deficiencies, reminding it of the obligation to identify each individual that participated in each e-mail string and to establish that their participation did not compromise the assertion of the privilege. Id. at *2.

The court found that the final iteration of Target’s privilege log did not cure the deficiencies and failed to establish the basis for the privilege with respect to the majority of documents listed. First, the privilege log only identified the last e-mail in the string of correspondence. Id. at *4. The court held that including only the last e-mail in the longer string may not provide accurate or complete information regarding what is being withheld under a claim of privilege. Id. at *5. As a result, the court held that, with limited exception, each e-mail within a string be treated as a separate communication for purposes of evaluating the applicability of the privilege and preparing a privilege log. The court did recognize that certain e-mail strings, such as those involving the same group of individuals exchange e-mails on one particular privileged topic, may be considered a single privileged communication for purposes of a privilege log. Id.

Additionally, while Target’s revised log identified the participants in each email exchange by title, it did not provide any information as to the role of the employee where it was not evident by the employee’s title. Id. at *5. Absent such information, the court found that it was unable to determine that the privilege was not compromised by an individuals’ involvement in the communication. Id. at *6. Whether in the privilege log or in a supporting affidavit, the court required that the proponent of the privilege provide enough information regarding the identity and function of each individual involved in the communication to permit the court to determine that each employee was “directly concerned” with or “primarily responsible” for the matter at hand. Id. at *4. In this regard, the court referred to the body of law holding that dissemination of privileged information to employees not “directly concerned” or “primarily responsible” could jeopardize a claim of privilege. Id. at *4-6.

The examples provided by the court provide should raise a red flag for in-house counsel concerned with the manner in which their client uses e-mail in the ordinary course of business, and employees’ compliance with any relevant e-mail policies. For example, the court noted that where a privileged communication is embedded in an e-mail string later forwarded for purely business reasons to those not involved in the initial privileged communication , that communication may not be privileged. Instead, the court found that the later inclusion of employees not involved in the privileged discussion may suggest that they were not necessary for the rendering of legal advice such that forwarding the underlying e-mail to them thereafter may eviscerate the privilege. Id. at *6-7. The court also noted that the forwarding of privileged e-mail correspondence could be antithetical to the necessary intent to keep the communication confidential, particularly where the once-privileged communication did not include any language limiting its distribution. Id. Ultimately, the court noted that Target’s inability to establish the privilege “reflects a style of dealing with internal corporate communications that is inherently at odds with the basic principle that the ability to withhold otherwise-discoverable information is a privilege and an exception to the general rule of discoverability.” Id. *8.

The court did recognize that the type of privilege log it deemed mandated by the Federal Rules placed an additional burden upon parties, but invited parties to reach agreement regarding the logging of e-mails during the course of the electronic discovery discussions required by Fed. R. Civ. P. 26(f). Id. at *8 n.5. While such an agreement might address some of litigation counsel’s issues in creating a sufficient privilege log of e-mail correspondence, the broader and more difficult challenge is on corporations and their in-house counsel to institute and enforce controls over the creation and dissemination of corporate e-mail that are adequate to protect privileged communications.

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