Knowing a Party Used a Personal Email Account Should Not Take X-Ray Vision

Discovery surprises are rarely fun for producing parties. In a case where the parties had an ESI Protocol outlining emails to be searched, the Defendants sought a Court order for the Plaintiffs to search the CEO’s personal Gmail account. The Defendants offered an email exchange they discovered from the CEO with another individual as the basis for searching the CEO’s gmail. Radiologix, Inc. v. Radiology & Nuclear Med., LLC, No. 15-4927-DDC, 2018 U.S. Dist. LEXIS 86964, at *12-14 (D. Kan. May 24, 2018).

The Plaintiffs argued that all but one of their custodians used their work emails to conduct business. However, the CEO’s Gmail account was linked to the work email server. Moreover, the CEO’s work related emails sent from his Gmail account were archived by their email system, which was how the original message was produced.

The Court granted the motion to compel in part. The Plaintiffs were ordered to search the CEO’s Gmail account for responsive documents not already produced. Radiologix, at *13-14. Duplicative emails did not need to be produced. As to the argument the ESI Protocol did not include the Gmail account to be searched, the parties did not know about the Gmail account when they entered the protocol. Radiologix, at *14. The Court did not order any other personal email accounts to be searched, unless there was other evidence later surfaced. Id.

Bow Tie Thoughts

Attorneys should ask their clients whether they have used personal email to conduct business. Another topic is whether a person has a Gmail account used for Google Drive that is connected to their business. Asking these questions can avoid unpleasant surprises that can turn into a motion to compel.