Legal Books and Gavel

Linked: Lesser Included Emails in Threads Must Be Produced, Court Rules

I wanted to share this ruling not so much to get into legal analysis. As I mention quite frequently, I am not a lawyer (IANAL) after all. But, because this is a standard that some services that create chat transcripts perform a similar task, where it does not include the metadata for each text, Slack, or Teams message.

“Continuing, Judge Aaron stated: “Takeda’s exclusion of lesser included emails from production has resulted in the exclusion of the metadata associated with earlier emails in a chain (which may be weeks or even months prior to the last email in a chain)…This exclusion materially has reduced Plaintiffs’ ability to search for all correspondence within a date range. In addition, in certain email chains, only the sender of particular emails earlier in a chain are reflected, and not the recipients of such emails…Finally, Takeda’s email threading has removed Plaintiffs’ ability to see if anyone was blind-copied on lesser included emails, even though this information was among the metadata the parties agreed in the Discovery Protocol to produce.””

Essentially, if you’re not familiar with email threading, the idea is that if a group of people is sending emails back and forth by hitting the Reply button, and the previous email is copied into the body of the previous email, you don’t really have to read each individual email. At some point, later emails have the entire conversation in them. This means that it’s not necessary to read the “lesser included emails” because you already read them as part of the thread. But, the problem Judge Aaron describes is that while the text is there at the end of thread messages, you’re missing important metadata that is unique to the individual message.

As I said, having worked with Teams messages often I have seen this, where a transcript doesn’t have all of the message metadata, especially the time/dates of each message versus the beginning or end of the chat. If you’re creating those transcripts and not including each message in your production, you might be running afoul of your production requirements.

But, as I said, IANAL, so don’t take my word for it, do your own testing.

Lesser Included Emails in Threads Must Be Produced, Court Rules: eDiscovery Case Law

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