Parent and Child Reunion

Abu Dhabi Commercial Bank et al. v. Morgan Stanley & Co., Inc., et al., No. 08 Civ. 7508, 2011 U.S. Dist. LEXIS 95912 (S.D.N.Y. Aug. 8, 2011)

Topic: Email attachments and relevance.


Defendants in a multi-party action discovered that the plaintiff had produced numerous emails without their referenced attachments. The defendants moved to compel production of the attachments, arguing that production of documents as they are kept in the ordinary course of business meant the emails and attachments should have been produced together. Further, defendants argued that a parent email and a child attachment fall under the Sedona Conference's definition of a "document" as "a logical single communication, but consisting of more than a single stand alone record." Plaintiff argued that the attachments were not relevant because of their creation dates.

In response, the Special Master managing discovery conducted a thorough case law review and found that courts have afforded varying treatment to production of email attachments. Some courts view attachments as separate from their email parent, while others view email and attachments as a singular unit. The Special Master found that the prevailing discovery practice treats the concept of production as maintained in the  "ordinary course of business" as including non-privileged child attachments with relevant, parent emails. But he noted that no iron-clad attachment production rule exists, and therefore advised that parties meet and discuss treatment of email attachments in advance of discovery as a matter of practice.

The Special Master then addressed the specifics of the case under review.  He recommended a procedure that entailed identification of certain emails with the allegedly missing attachments, meet and confers, production if not burdensome, and the availability to move to compel if necessary. U.S. District Court Judge Shira Scheindlin, author of the seminal Zubulake opinions and a leading voice in e-discovery jurisprudence, adopted these recommendations.

BuLITS Points:

  • Relevance matters. The Special Master identified relevance as the sin qua non of discovery and considered situations where a single email communication "package" could have multiple attachments with differing relevance to a particular discovery request. Arguably, the door remains open to claims that some attachments are not discoverable because they lack relevance to the dispute.


  • But Completeness Counts. Federal Rule of Evidence 106 states that when part of a document is introduced into evidence, the entire document may also receive contemporaneous consideration, if fairness requires. Thus, fairness may entail consideration of parent email and child attachment together because they are akin to paper documents stapled together. In the days of paper discovery, those types of document sets were often treated as a single object for relevance assessments.


  • Agree Early. The Special Master's opinion reveals an emerging judicial trend-endorsed by Sedona Conference materials-that strongly encourages parties to address issues like production of email attachments during an early meet and confer process and in agreed upon e-discovery plans.

And Remember:

Be consistent. The Special Master pointed out that the plaintiff had produced emails with their attachments throughout the litigation. This prior course of conduct persuaded the Special Master that the plaintiff had previously viewed the attachments as responsive and relevant, making it more difficult to argue that the attachments now deserved separate consideration.

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