Privilege, Attachments, and an ESI Protocol Surprise

In a recent case, opposing counsel added a new term to the ESI Protocol that I had not seen before. It required us to separately log each document withheld for attorney-client privilege, expressly including email attachments, and provide an independent basis for privilege for each document.

This term threw me off. Imagine an email from outside counsel, discussing three court decisions and the ways in which the facts and law in each might have bearing on a current legal issue. Attached to the email are the three cases, downloaded from Westlaw, without any annotations from counsel. The filename of each attachment is the relevant case caption.

In the past, I would have withheld the email and its attachments—the document “family”—and combined them into a single privilege log entry. The entry would provide sender and recipient, subject line, and date sent, and a description like this: "Attorney-client privileged email and three attachments providing legal advice from outside counsel regarding [subject]."

Logging the attachments on separate entries, according to opposing counsel’s preference, presents two problems:

Problem One: The attachments are not in and of themselves privileged. They're publicly available court decisions. My privilege description will have to be along the lines of: "Attachment sent for the purpose of providing legal advice regarding [subject]." Is this vague? Will it be challenged as lacking an independent basis? Does it just look a bit silly?

Problem Two: The attachments are part of the legal advice being provided in the email. If I log them separately, providing the filename and author, then the opposing party will have no difficulty looking up those cases on Westlaw themselves and perhaps figuring out the substance of counsel’s legal advice.

If the cases had been copied and pasted into the email, they would have been part of the privileged document. Why must I treat them differently when they're attached instead? (I've heard this called the "staple" or "envelope" rule: Documents sent and stored together should be produced or withheld together.)

It is important to remember that the attachments are not being withheld universally. If the client saved them apart from the email on his shared drive, and they are responsive to a request, then those copies will be produced. Coded "facially" or within the four corners of the document, these documents are not privileged.

Predictably, courts have come down all over the place on whether attachments have to be logged or produced, but not in a controlling opinion.

In the meantime, this term in the protocol has led to some close analysis of privileged emails and their attachments. In some cases, where the title or substance of the attachment was unlikely to reveal the substance of the advice given or sought, I've recommended we produce them, with a slipsheet in place of the privileged parent email. In others, I've advised that the filename of the attachment (e.g., a case citation) be redacted in the log entry.

If you have thoughts about dealing with this strange conundrum (including, "don't agree to that term in the ESI Protocol!"), please leave them on LinkedIn.