Some courts, although very few of them, have addressed the issue of email strings in privilege logs, so it’s important to look at the current state of the law on that topic. The trend is that each email string is looked at as a separate document. So, if you have a top level email with five emails lower in the string, you would look at that entire string as one document. If it were privileged, you would log that on a privilege log as one document.
To do this, you would look at the top level email and you would put the “to, from and cc” recipients in the various fields of the privilege log. You would add another column that says “other email recipients” that would include all of the other individuals who appear lower in the string, but who are not on the top level string.
One thing that you need to be mindful about when you are looking at email strings is that the first email in the string could have been from the lawyer to the client. That email standing alone would be privileged. If that email were forwarded to individuals who were not within the “privileged persons” definition, subsequent variations of that email-even if the initial one was properly withheld as privileged- would have to be produced if the privilege didn’t apply.
Rebecca Kelder Myers is an attorney at Paul, Hastings, Janofsky & Walker in New York and is the co-author of Bensen & Myers on Litigation Management along with Eric E. Bensen. Myers concentrates her practice on intellectual property law and commercial litigation. Her practice includes litigating and counseling clients with respect to a wide range of intellectual property matters and assisting clients in establishing and maintaining rights in intellectual property through litigation, licensing and a variety of other arrangements.