Court Orders Production of Non-Privileged Emails in Chain of Otherwise Privileged Emails

As originally published in Forbes. 

In an important Order, Magistrate Judge Kathleen Tomlinson of the Eastern District of New York held that a non-privileged intermediary email in a chain of otherwise privileged emails cannot be withheld from discovery requests.

In Benefitvision, Inc. v. Gentiva Health Services, Inc. (E.D.N.Y. May 23, 2011), the court considered the plaintiff’s Motion to Compel the defendants to produce email communications that the defendants were withholding based on their assertion of confidentiality or privilege. The plaintiff contended that the defendant had withheld entire email chains where only one email in the chain was privileged.

The Magistrate quickly dispensed with the defendant’s proposal to produce a supplementary privilege log. The court stated:

If an intermediary email in [a] chain is not subject to work-product or attorney-client privilege, it cannot be withheld from production. If Defendants contend that an email chain contains only privileged information, then [the chain] can be withheld in its entirety for the time being and should be included on the privilege log. If there are email chains in which Defendants claim privilege over only parts of the email chain, those allegedly privileged emails must be redacted and all non-privileged portions must be produced. (emphases in original).

The court thus ordered the defendants to produce redacted email chains that blocked the contents of the privileged communication while disclosing the others.