Legal Updates

10/19/2007

A Lesson In E-Discovery Marriage - The PSEG Case

The e-mail and the attachment; a match made in e-discovery heaven. As the court in PSEG Power New York, Inc. v. Alberici Constructors, Inc., No 1:05-CV-657 (DNH/RFT), 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007), points out, this is one marriage you can’t afford to see end in divorce.

If ever involved in the litigation discovery process, chances are you will be asked to produce all e-mails and attachments related to the dispute at hand. As such, the Federal Rules of Civil Procedure require the producing party to produce electronically stored information (e.g., e-mails and attachments) “as they are kept in the usual course of business.” FED. R. CIV. P. 34(b). If the opposing party does not specify the form for producing such information, “a responding party must produce the information in a form or forms in which it is ordinarily maintained.” Id. Since it is standard for an e-mail to remain with its attachment, a party producing stored e-mails is expected to include any related attachments. The question faced by the PSEG court was this: do produced e-mails and attachments need to be produced together or can they be separated?

In relevant part, PSEG involved approximately 3000 electronically stored e-mails and corresponding attachments. 2007 WL 2687670 at *1. The Plaintiff produced the e-mails to the Defendant, but as a result of a technical formatting error on the part of Plaintiff’s electronic discovery vendor, the attachments became separated from their corresponding e-mails. Id. at *2. In short, the separation occurred because the vendor and the Plaintiff used different software to reduce the documents to a reviewable form. Id. As such, the Plaintiff produced the e-mails and the attachments, but they were not together. Despite numerous ideas and solutions to rejoin the information, nothing proved effective. Id. at *2-3. As a result, the only way to produce the e-mails with their corresponding attachments was to re-download the information from the Plaintiff’s computer system. Id. at *3. Although the parties disagreed on the cost of re-downloading the information, the final cost would range between $40,000 and $200,000. Id. at *9. As a result, the court was faced with three questions: (1) was the Defendant entitled to receive the e-mails with their attachments together, (2) was the Plaintiff obligated to provide these documents in their original format, and (3) if re-production was required, who must bear the cost? Id. at *4.

After analyzing Rule 34(b), the court ruled that the Defendant was entitled to the e-mails together with their corresponding attachments and that the Plaintiff was obligated to produce them in such a manner. Id. at *8. In so holding, the court stated that “one would expect that an e-mail and its attachment would have been kept together in the regular course of business, and the production of said documents would have followed suit.” Id. at *6. What is critical to note is that the Plaintiff was unable to provide any alternative means of identifying the attachments with their e-mails. Id. Further, all of the Plaintiff’s recommendations, which included having the Defendant identify important e-mails and then having the Plaintiff retrieve the affiliated attachments, were deemed unacceptable by the court. Id. at *8. As the court noted, “[t]he hidden benefit of this process to [Plaintiff] is that [Defendant] could unwittingly reveal some of its thinking, strategy and impression each time it identifies selected documents.” Id.

To make matters worse for the Plaintiff, the court ruled that it was the Plaintiff’s burden to bear the cost of re-producing the information. Id. at *11. Plaintiff argued that Rule 34(b)(iii) only required Plaintiff to produce the information one time and in one form. Id. at *9 (Rule 34(b)(iii) states “a party need not produce the same electronically stored information in more than one form.”). Plaintiff also cited Rule 26(b)(2), which states “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” FED. R. CIV. P. 36(b)(2). In other words, the Plaintiff argued that they already produced the information and to re-produce the information would be an undue burden and cost on the Plaintiff. Notwithstanding this argument, the court held that the potential for discovery outweighed the cost to the Plaintiff. Id. at *12. The information requested was relevant and appropriate pursuant to the rules guiding discovery and it was the Plaintiff and their vendor who created the problem. As such, Plaintiff was required to re-produce the e-mails and their corresponding attachments and was responsible for the cost of re-production.

What does this mean for you? If you are ever in the unfortunate situation of having to produce electronically stored information, take any and all precautions to ensure that the production goes smoothly. Communicate with your vendor and make certain that all software and formatting issues are resolved prior to incurring any costs. Although the production of electronically stored information is costly, the e-mail-attachment divorce can cost you even more.

For more information, see our Electronic Discovery and Records Management practice.

If you would like to receive our legal news updates by e-mail, please use our online sign-up form.

McGuireWoods news is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. McGuireWoods does not intend to create an attorney-client relationship by offering this information, and anyone's review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention.

MORE INFORMATION