E-Discovery Update: Nonresponsive Attachments – In or Out?

August 3, 2015

The Federal Rules of Civil Procedure state that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1) (emphasis added). In electronic discovery, this presents the question of whether a party must produce electronically stored information (ESI) in “families” or whether it is permissible to remove nonresponsive attachments prior to production. (A “family” refers to an email with its attachments or a document that has embedded material that is “attached” to the document after processing and extracting all the materials.) Courts generally allow the removal of nonresponsive attachments, but in some cases have exercised some oversight regarding the process.

Many companies have a strong interest in withholding nonresponsive attachments because of the potential to produce unrelated confidential, sensitive and/or proprietary material. However, the opposing party may argue that it needs the nonresponsive documents for context and a number of government regulators require “full family” productions. Thus, removing nonresponsive attachments can increase litigation costs by creating disputes over these issues. The decision whether to produce in full families should consider these competing interests.

While there is limited case law on this precise issue, two decisions support the removal of nonresponsive documents from responsive families produced. See In Re: Zoloft Prod. Liab. Litig., MDL No. 2342, 2013 WL 8445354, *4-5 (E.D. Pa. Oct. 31, 2013), adopted without objection, 2013 WL 8445280 (Nov. 19, 2013) (denying plaintiffs request that Pfizer produce nonresponsive documents in responsive families that were previously withheld, but directing the parties to meet and confer regarding how documents detached from productions in the future may be better identified); and Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., No. 08 Civ. 7508, 2011 WL 3738979, *5 (S.D.N.Y. Aug. 18, 2011), adopted without objection, 2011 WL 3734236 (S.D.N.Y. Aug. 24, 2011).

Related to this topic is how courts address the issue of nonresponsive redactions in otherwise relevant documents. See, e.g., Cooper Health Sys. v. Virtua Health, Inc., 259 F.R.D. 208, 212-13 (D. N.J. 2009) (upholding redaction of irrelevant information from certain produced documents, noting that “while the scope of Fed. R. Civ. P. 26 discovery is broad, it is not unlimited and may be circumscribed”). But see Bartholomew v. Avalon Capital Group, Inc., 278 F.R.D. 441, 451-52 (D. Minn. 2011) (ordering defendants to remove redactions based solely on relevance).

In Abu Dhabi, the court stated that “[c]onceptually, there is a good basis for considering each item (each email and each attachment) separately,” and in light of the concept that “[r]elevance is the sine qua non of discovery,” documents that are not relevant are not discoverable. 2011 WL 3738979, at *5. However, due to evidence that the producing party withheld responsive attachments and lacked transparency in withholding non-responsive attachments, the court ordered that some of the withheld attachments be produced in order to further evaluate whether there was a meaningful percentage of mistakes regarding relevance. See id. at *7. The court also required the producing party to identify withheld attachments by Bates number along with information regarding the “parent” documents. Id. at *8.

Often there are practical and strategic reasons making the production of documents in full families an attractive option, but just as often there is good reason to withhold nonresponsive information. This is one of many decisions that counsel must think through during discovery involving ESI.