Must Parent and Attachment Files Be Kept Together?

The extraordinary cost of e-discovery is well documented. The amount of ESI that we generate is exploding and the use and prevalence of technology, its ease of access and the relatively low cost mean that trend will continue. Clients are becoming increasingly sensitive to and concerned about these increasing costs, and the ongoing economic malaise has only exacerbated the problem and hastened clients’ efforts to control such costs. In doing so, parties are looking beyond macro controls such as the number of custodians, the nature of collections (full v. targeted), and filtering techniques (date limitations, keyword terms), and now look at micro controls, including the parsing of document families at a component level. A key question, therefore, becomes: If one part of a multi-component document is relevant, should all nonprivileged parts of that document also be produced?

Some answer affirmatively, that a producing party must keep parents and attachments together, for various reasons, e.g., Fed. R. Civ. P. 34(b) (as kept in the usual course of business), Fed. R. Evid. 106 (completeness supports context), secondary sources (the Sedona Conference’s definition of document) and prevailing practices (production guidelines of the FTC and DOJ). Other bases exist, though, for treating parents and attachments separately, e.g., Fed. R. Civ. P 26(b)(1) (relevance) and Fed. R. Civ. P 26(b)(5) (privilege).