Caselaw Update: Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007)

Article

E-Discovery Alert

February 26, 2008

In Gibbons’ last E-Discovery News, we reported on a decision from the United States District Court for the Northern District of Illinois by Magistrate Judge Geraldine Soat Brown where the Court granted Plaintiff Christine Muro’s (“Plaintiff”) motion to compel the production of corporate e-mail correspondence from Defendants Target Corporation, Target National Bank, and Target Receivables Corporation (“Defendants”), some of which contained legal opinions, based upon the insufficiency of defendants’ privilege log. Muro v. Target Corp., 2007 WL 1630407 (N.D.Ill. June 7, 2007). In this suit, plaintiff alleged that defendants mailed unsolicited credit cards to individuals in violation of the Truth in Lending Act and sought class-action certification. Several discovery disputes ensued, involving questions regarding the discoverability of the defendants’ litigation hold notices and adequacy of the defendants’ privilege log. After providing defendants with two opportunities to amend their privilege log, the Magistrate Judge found that defendants’ privilege log was inadequate pursuant to Fed. R. Civ. P. 26(b)(5) because, among other things: (1) it only provided the e-mail subject line to describe each document; (2) did not identify each individual that took part in each allegedly privileged communication; (3) failed to establish that their participation did not compromise the assertion of the privilege; and (4) only identified the last e-mail in the string of correspondence.

Addressing defendants’ objections to certain rulings made by the Magistrate Judge, District Judge Rebecca R. Pallmeyer concluded that the Magistrate Judge erred in concluding that Fed. R. Civ. P. 26(b)(5) requires “separate itemization” of e-mails within an e-mail string. Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007), at *12. Relying upon Upjohn Co. v. United States, 449 U.S. 383 (1981), Judge Pallmeyer concluded that Fed. R. Civ. P. 26(b)(5) does not require privilege logs to separate entries of multiple e-mails within the same string and that a single e-mail of a forwarded chain to counsel is protected by the attorney-client privilege. The Court recognized that “[a]uthorities are divided on whether a privilege log should include separate entries for multiple e-mails within the same string.” However, the Court explained that:

[a]s applied in the e-mail discovery context, the court understands Upjohn to mean that even though one e-mail is not privileged, a second e-mail which forwards that prior e-mail to counsel might be privileged in its entirety. In this respect, the forwarded material is similar to prior conversations or documents that are quoted verbatim in a letter to a party’s attorney.

Muro v. Target Corp., 2007 WL 3254463, at *12.

Accordingly, the Court concluded that the Magistrate Judge erred by requiring a “method of itemization that will, in some cases, force parties to disclose privileged information,” and the Court sustained defendants’ objection to the Magistrate Judge’s ruling that their privilege log was inadequate for failure to separately itemize each individual e-mail in an e-mail string.

The Court also addressed Judge Brown’s finding that defendants’ privilege log was inadequate for failing to adequately demonstrate that the dissemination of documents listed was confined to those individuals within the sphere of the corporate privilege. The District Court first concluded that the Magistrate Judge had erred in finding that defendants’ log was inadequate because the log indicated that there was a large group of recipients. Specifically, the Court explained that “[t]here is no rule of law … that puts a numerical upper limit on the number of corporate employees who can be within the sphere of privilege.” Furthermore, the Court noted that privilege is not dependent on the size of the group of corporate employees who received a communication, but “[r]ather, privilege can extend to any employee who communicates with counsel at the direction of her superiors, regarding matters within the scope of her duties.”

Despite its disagreement with certain of the Magistrate Judge’s findings, the Court did take issue with certain aspects of defendants’ privilege log. The Court reasoned that defendants’ privilege log was defective because it failed to identify all of the recipients of some messages, rendering plaintiff unable to assess whether recipients fell within the sphere of corporate privilege. The log also improperly used “sometimes-cryptic job titles to explain the recipients of e-mails,” which made it difficult to assess the applicability of privilege. Thus, the Court allowed defendants ten days to submit a revised privilege log remedying these defects so the Court could perform an in camera review and determine whether to extend privilege protection to the communications at issue.

The District Court also upheld Judge Brown’s finding that defendants’ litigation hold notices were protected by the work-product doctrine. After an in camera review of the documents, the court explained that “[e]ach seem to be communications of legal advice from corporate counsel to corporate employees regarding document preservation.” Accordingly, the court rejected plaintiff’s argument that the Magistrate Judge erred in finding the “litigation hold” notices to be protected by the attorney-client privilege and to work product protection.

The District Court’s decision in Muro should provide at least temporary relief to corporate litigants faced with the daunting task of compiling a privilege log in litigation involving a substantial collection of e-mail communications. However, any reliance upon this ruling should be carefully considered and cautiously undertaken, because no uniform rule has emerged as to whether individual e-mails in a string must be separately itemized. It seems clear that courts will continue to grapple with the difficult issue of assessing whether, and to what extent, e-mail correspondence is protected by the attorney client or work product privileges and, if so, how these communications must be described in a privilege log.

Addressing defendants’ objections to certain rulings made by the Magistrate Judge, District Judge Rebecca R. Pallmeyer concluded that the Magistrate Judge erred in concluding that Fed. R. Civ. P. 26(b)(5) requires “separate itemization” of e-mails within an e-mail string. Muro v. Target Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007), at *12. Relying upon Upjohn Co. v. United States, 449 U.S. 383 (1981), Judge Pallmeyer concluded that Fed. R. Civ. P. 26(b)(5) does not require privilege logs to separate entries of multiple e-mails within the same string and that a single e-mail of a forwarded chain to counsel is protected by the attorney-client privilege. The Court recognized that “[a]uthorities are divided on whether a privilege log should include separate entries for multiple e-mails within the same string.” However, the Court explained that:

[a]s applied in the e-mail discovery context, the court understands Upjohn to mean that even though one e-mail is not privileged, a second e-mail which forwards that prior e-mail to counsel might be privileged in its entirety. In this respect, the forwarded material is similar to prior conversations or documents that are quoted verbatim in a letter to a party’s attorney.

Muro v. Target Corp., 2007 WL 3254463, at *12.

Accordingly, the Court concluded that the Magistrate Judge erred by requiring a “method of itemization that will, in some cases, force parties to disclose privileged information,” and the Court sustained defendants’ objection to the Magistrate Judge’s ruling that their privilege log was inadequate for failure to separately itemize each individual e-mail in an e-mail string.

The Court also addressed Judge Brown’s finding that defendants’ privilege log was inadequate for failing to adequately demonstrate that the dissemination of documents listed was confined to those individuals within the sphere of the corporate privilege. The District Court first concluded that the Magistrate Judge had erred in finding that defendants’ log was inadequate because the log indicated that there was a large group of recipients. Specifically, the Court explained that “[t]here is no rule of law … that puts a numerical upper limit on the number of corporate employees who can be within the sphere of privilege.” Furthermore, the Court noted that privilege is not dependent on the size of the group of corporate employees who received a communication, but “[r]ather, privilege can extend to any employee who communicates with counsel at the direction of her superiors, regarding matters within the scope of her duties.”

Despite its disagreement with certain of the Magistrate Judge’s findings, the Court did take issue with certain aspects of defendants’ privilege log. The Court reasoned that defendants’ privilege log was defective because it failed to identify all of the recipients of some messages, rendering plaintiff unable to assess whether recipients fell within the sphere of corporate privilege. The log also improperly used “sometimes-cryptic job titles to explain the recipients of e-mails,” which made it difficult to assess the applicability of privilege. Thus, the Court allowed defendants ten days to submit a revised privilege log remedying these defects so the Court could perform an in camera review and determine whether to extend privilege protection to the communications at issue.

The District Court also upheld Judge Brown’s finding that defendants’ litigation hold notices were protected by the work-product doctrine. After an in camera review of the documents, the court explained that “[e]ach seem to be communications of legal advice from corporate counsel to corporate employees regarding document preservation.” Accordingly, the court rejected plaintiff’s argument that the Magistrate Judge erred in finding the “litigation hold” notices to be protected by the attorney-client privilege and to work product protection.

The District Court’s decision in Muro should provide at least temporary relief to corporate litigants faced with the daunting task of compiling a privilege log in litigation involving a substantial collection of e-mail communications. However, any reliance upon this ruling should be carefully considered and cautiously undertaken, because no uniform rule has emerged as to whether individual e-mails in a string must be separately itemized. It seems clear that courts will continue to grapple with the difficult issue of assessing whether, and to what extent, e-mail correspondence is protected by the attorney client or work product privileges and, if so, how these communications must be described in a privilege log.