Asking for 13 Years of Email is Not Proportional to the Case

A Plaintiff sought from the Defendant the Plaintiff’s entire work email inbox from 2001 to present “in unrestricted and searchable ‘PST’ file format.” Odeh v. City of Baton Rouge E. Baton Rouge (M.D.La. Mar. 29, 2016, No. 14-793-JJB-RLB) 2016 U.S. Dist. LEXIS 41079, at *7-8. In addition to the fact the 2001 to 2004 emails no longer existed, the Defendant stated that available emails totaled 64,685 messages. Moreover, since the Plaintiff wanted the entire email mailbox, the Defendant understandably wanted to review each one for privilege if they had to produce them. Odeh, at *8.

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The Producing Party very reasonably objected to producing the entirety of the email mailbox on the grounds it was overly broad, unduly burdensome, and that the Plaintiff had not explained why the 13 years of email was relevant or proportional to the needs of the case. Id.

The Defendants further argued the Plaintiff did not limit the scope of the email request to specific individuals, time periods, or search terms. Odeh, at *9. The Plaintiff explained in Court that the emails were relevant because the messages were “written around the time he created the software at issue and those written around the time that Defendant started using the software (roughly a two-year period) would be relevant to whether.” Id.

The Court held that the Plaintiff did not show that the emails from 2001 to 2014 were relevant. The Court noted that it is not an email inbox, but the communications that can be relevant to a case. Odeh, at *10.

The Court explained:

If Plaintiff needs certain types of information, regardless of whether that information is found in an internal memorandum, email, letter, etc., he may specifically request the type of information sought, regardless of whether it may be found in an email inbox or stored in some other more conventional manner. As the requesting party, Plaintiff has an obligation to sufficiently describe each item or category of items he desires. Fed. R. Civ. P. 34(b)(1)(A) (a request for production should describe the sought after items with “reasonable particularity”).

Odeh, at *10.

Bow Tie Thoughts

Drafting requests for production is a mix of art and science. Like art and science, drafting a good request can be a challenge that takes skill. The goal is to ask for what you want and not get buried in tons of irrelevant data that is not helpful to your case.

Demanding an entire email inbox with over a decade of information would not be a victory if a requesting party actually got a production with that much ESI. Where would you begin review? Would a requesting party truly want to do all the grunt work of reviewing that much email?

It is a good practice to consider the following in preparing a request for production: What do you want? Is the information supporting any specific causes of action or defenses? What is the subject matter you are looking for (i.e., the contract for the Widgets)? Who was involved in sending the communications? What time frame did these events take place in? What terms of art did the parties use in their messages?

This is not always an easy process. It requires thought, which can be a challenge if the requesting party does not know exactly what to request. For example, a requesting party will know the subject matter of the case, but might not know everyone who sent messages on the other side or terms of art. Those topics ideally should be discussed at a meet and confer to determine the scope of discovery. While some producing parties might feel deprived if they cannot engage in gamesmanship, agreeing on the scope is cheaper than protracted motion practice.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.