As indicated in earlier Privilege Points, courts disagree about how a litigant should log e-mail strings containing privileged communications. With the proliferation of e-mail communications and electronic discovery, this debate obviously affects litigation costs and the privilege analysis itself.
In Muro v. Target Corp., No. 04 C 6267, 2007 U.S. Dist. LEXIS 41442 (N.D. Ill. June 7, 2007), the court acknowledged that one log entry could conceivably cover an e-mail string between two individuals discussing one topic. However, the court provided several examples (in excruciating detail) of how defendant Target’s logging of e-mail strings erroneously described and withheld non-privileged communications that were part of extensive e-mail strings. Among other things, the court noted that some of the e-mail strings were distributed to “unidentified distribution lists” — concluding that “[d]istribution to such large numbers of persons does not suggest confidentiality, and no privilege can be maintained for communications that were shared with a group of unidentified persons.” Id. At *16-17. The court ultimately found that Target had been given three chances to prepare a proper log, and that its failure to do so forfeited the company’s privilege and work product claims.
Although Illinois’s status as a “control group” test state makes it difficult to predict whether other states would have adopted the same reasoning about the unidentified recipients, lawyers everywhere should take note whenever a company like Target loses a privilege fight after trying three times to properly log e-mail strings.