October 23, 2025 • 23 mins
What if the most important part of your email evidence is the message you didn’t receive? We dig into a timely antitrust class action centered on formulary placement for a multiple sclerosis drug and unpack a pivotal ruling on whether parties must produce non-inclusive emails within threads. The debate sounds technical—threading, metadata fields, inclusive versus non-inclusive—but the stakes are practical: searchability, fairness, and how close your evidence is to the way it’s ordinarily maintained.
We walk through the competing proposals: defendants sought to produce only the most inclusive emails with a supplemental metadata field, while plaintiffs pressed for every message and its native metadata to support real-world workflows like custodian-based searches, timeline building, and deposition prep. Judge Young Kim’s analysis becomes a roadmap for litigators: Rule 34 favors production as ordinarily maintained; usability is not satisfied by bolted-on fields; and proportionality demands concrete numbers, not speculative claims about hosting costs and review time. The court ultimately sides with plaintiffs—“barely”—and explains exactly what evidence could have changed the calculus.
Beyond the holding, we turn lessons into tactics. Threading can speed review and harmonize coding decisions, but it doesn’t justify depriving the other side of earlier messages or native metadata. Most platforms allow you to thread for review while still producing each email in a thread as a separate document with full fields intact. If you argue burden, bring data: gigabytes, rates, hours, throughput, and quality impacts tied to the actual collection. If you argue need, show how missing non-inclusive emails break custodian filters, analytics, and privilege accuracy. Antitrust matters may lean toward broader discovery, but the core principle travels: both sides deserve the same usable information.
Subscribe for weekly, practical ESI case breakdowns, share this episode with a colleague who wrangles email evidence, and leave a quick review to help others find the show. Your feedback fuels the next deep dive.
Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_00 (00:30):
Hi, and welcome to our case of the week segment of
the Meet and Confer podcast.
My name is Kelly Twigger.
I am this principal at ESIAttorneys, a boutique law firm
for e-discovery and informationlaw, as well as the CEO and
founder of Minerva 26, where wetake the insights from our
practice and provide a discoverystrategy tool to help litigators
(00:51):
understand and leverage thepower of ESI as evidence.
Our case of the week segment isbrought to you by Minerva 26 in
partnership with ACEDS.
If you're new to the podcast,each week I choose a recent
decisions on e-discovery issuesand highlight the practical
considerations for counsel toapply in their practice and for
other legal professionals toknow and understand.
(01:13):
If you love the podcast, I'dlove it if you would share it
with your colleagues andfriends.
Expanding our reach allows us tocontinue providing
knowledge-based content for youeach week.
Shout out this week to ChristianLee and to Bill Hamilton, who
both recommended our decisionfor this week's episode.
Our case this week comes to usfrom a class action titled Inray
(01:33):
Tech Federa, AntitrustLitigation, in which United
States Magistrate Judge KimJudge Young Kim, excuse me,
weighs in on whether a receivingparty is entitled to the
non-inclusive emails in an emailthread.
You've heard me refer to them aslesser included emails, and
we'll get into that.
This decision is importantbecause it identifies a key
(01:54):
analysis point in the productionof email.
And that's critical becauseemail is still the most
voluminous source of ESI inDiscovery.
As always, we'll include thelink to the decision and other
materials mentioned in the shownotes.
All right, let's dive in.
As I mentioned, this decisioncomes to us uh from September
25th, 2025, in the NRA TechFedera antitrust litigation.
(02:19):
I hope I'm pronouncing thatcorrectly, not really sure.
This is a decision from UnitedStates Magistrate Judge Young
Kim in the Northern District ofIllinois.
As always, we issue tag each ofthe decisions in our Minerva 26
database.
And this week's issues includeESI protocol, email threading,
privilege log, metadata, andproportionality.
(02:40):
All right, let's dive into thefacts of the case.
Now, the underlying case that'shappening here, I mentioned it's
a class action.
The class action involvesantitrust and RICO claims
related to defendant biogen'salleged scheme to limit
competition using unlawfulkickbacks to pharmacy benefit
managers in exchange forplacement of its multiple
(03:01):
sclerosis medication, TechFedera.
That places Tech Federa abovegeneric equivalents on the
formularies for drug companies.
If you don't know, as I didn't,what a drug formulary is, um,
according to the UnitedHealthcare website, which is my
insurance company, a formularyis just another name for a drug
(03:22):
list.
A formulary is the list ofgeneric and name brand
prescription drugs covered by aspecific health insurance plan.
Sometimes health planformularies are also referred to
as preferred drug lists.
The purpose of a drug formularyis to help manage which drug
drugs care providers canprescribe and that would be
(03:44):
covered by a health plan in2025.
The goal of a medical formularyis to make sure that the drugs
covered by a health plan aresafe, effective, and available
at a reasonable cost.
Health plan formularies aretypically created by a committee
set up by the plan's healthinsurance company.
The formulary committee wouldlikely include pharmacists and
doctors from various medicalareas.
(04:06):
This committee would then choosewhich prescription judge drugs
to include on the health planformulary.
A health plan may change itsformulary drug list from time to
time, and that may be becausenew drugs become available,
changes in treatment, or basedon new medical information.
So importance here is that TechFedera, essentially, I'm going
to guess its patent had expired.
(04:27):
So there were generic versionsof the drug available.
And the pharmaceutical companywanted Tech Federa to be listed
higher than the generics on thedrug plan formulary and thus get
recommended more, prescribedmore.
So better for income, right?
All right.
So that's what we're involvedhere in the background of this
case.
That's what we're fightingabout, and that's what we're
doing discovery on.
(04:48):
Now, procedurally, in this classaction, this decision is before
the court on cross motions fromthe parties regarding the entry
of an ESI protocol.
Now the court stayed discoveryfor both parties based on
anticipating a motion to dismissfrom the defendant, but allowed
the parties to exchange bothinitial disclosures under Rule
(05:09):
26 and to negotiate an ESIprotocol for the balance of the
case.
The parties agreed on all theissues for the ESI protocol
except for one related to emailthreading.
In essence, the defendant wantsto exclude what I refer to as
the lesser included emails in athread in production, but
provide metadata for thoseemails.
So no text, but metadata forthose lesser included emails.
(05:33):
The plaintiff objects, claimingthat failing to produce those
lesser included emails givesthem a less than full production
and limits their ability tosearch for those lesser included
emails.
All right, for those of you notfamiliar with what email
threading is, I covered this indetail on episode 66 of our case
of the week in the in-rate actospayer litigation, another
(05:54):
antitrust case.
If you're a Minerva 26 user, youhave access to that episode in
the case of the week module inour academy, so you can go check
that out.
For those of you that don't haveaccess, let me explain it a
little bit.
Email threading is a technologywithin a review platform.
There are dozens.
Lexby, disco, relativity, uh,reveal, everlaw, that eliminate
(06:16):
the need for a reviewer tocontinuously review the same
messages over and over again.
So think about the fact that ifyou've done review, because
emails get put in a thread whenone person responds or forwards
an earlier email, a productionmay include several to dozens of
the same email over and overagain.
And with human reviewers, youcan end up with different review
(06:40):
decisions applied to the sameemail in different threads.
The technology of emailthreading allows you to open a
window and take, identify all ofthe emails that are that are the
same textually and pull themtogether to be reviewed by one
person at a time.
That eliminates you havingmultiple reviewers seeing
(07:01):
messages from the same threadand perhaps coding them
differently.
It also allows you to apply aredaction to an email at one
time that can then be populatedacross that same email.
Again, the tool is text-based,text-based.
That's really key here becausewhat the defendants are trying
to argue here is that theplaintiffs shouldn't get the
text of those lesser-includedemails.
(07:24):
The issue becomes when youproduce emails that are part of
an email thread, and generallythe receiving party wants to
receive each individual email asa separate document because they
want to receive the associatedmetadata with the document to
allow them to search and filter.
If you've used a reviewplatform, you know that when you
have a thread, typically onlythe first or most inclusive
(07:46):
email would be listed as thedocument, and then there may be
10 to 12 emails below that.
Another approach is to produceeach individual email in the
thread.
Now, imagine, for example, ifyou have an email thread that
has 10 people on it and you'repreparing for a deposition of
John Doe, and John Doe is on twoemails, but he's not on the
(08:06):
other eight.
Essentially, when you're doingthat preparation, you want to
have that metadata to have thoseemails be able to be segregated
into individual documents asjust the two that went to John
Doe to be part of his depositionproduction.
Whereas if you don't have themetadata from the lesser two
emails and you only have thehighest thread or the full text
of those emails, if that threaddoesn't list John Doe on it, or
(08:30):
there's other metadata thatwould prevent it from being
contained in a search for JohnDoe's materials, then whoever is
prepping for the deposition willnot have the ability to use that
information.
It won't come up in a search.
Now, the federal rules of civilprocedure provide that
essentially both parties shouldhave the same information.
That's been a topic ofdiscussion at the Sedona
(08:50):
conference.
And I've had that discussionmultiple times here on the case
of the week and also on panelsthat I've spoken on.
Essentially, both parties shouldhave access and are entitled to
the same information.
Now, I can go off on a tangenthere and tell you that I think
we should all be producing datanatively, which would really
give both sides the access tothe information, but we're not
(09:11):
quite there yet.
All right, with that backgroundon threading, let's turn to what
Magistrate Judge Kim had to sayon this issue.
First, Judge Kim refers to thelesser-included emails as
non-inclusive based on anarticle that he cites.
I haven't heard that termbefore, but that's what the
court uses, so that's how I'llrefer to them for this case.
(09:32):
What's great about this case andwhy I wanted to cover it today
is the way that Judge Kim laysout his analysis.
If you want to argue about emailthreading, Judge Kim's decision
here and the N-Ray Actos payerlitigation are two you'll want
to include.
He also cites to a host of otherdecisions that are relevant.
He does, in fact, cite to theN-RAE Actos case, so that one
will be included in the link tothis week's decision.
(09:54):
But what's most interesting isthat in his analysis, Judge Kim
is looking for case law in theSeventh Circuit where he sits
that is precedential.
He specifically says that.
And frankly, we don't see a lotof that in e-discovery case law
because no one jurisdiction hasdeveloped a full body of law on
all of the issues raised by thediscovery of ESI.
(10:16):
Our legal landscape ine-discovery is constantly
evolving.
So we can't look just inside ourjurisdiction the way that we can
in other substantive areas ofthe law.
The facts of each case are socritical to the analysis and
discovery that looking at caselaw from across the country has
become the norm.
That's consistent here whenJudge Kim says that, quote, from
(10:39):
this court's perspective, thereis no binding precedent in the
Seventh Circuit regarding thisissue.
Second, the court notes thatthis is an antitrust matter and
that courts tend to liberallyconstrue the discovery rules in
antitrust cases because directevidence of antitrust claims is
difficult to obtain.
That may be important if you'retrying to apply the principles
(11:01):
of these cases to non-antitrustmatters.
So keep that in mind if you'rearguing email threading that you
need to think about the factthat both this case and the Enry
Actos case are both antitrustlitigation with that broader
scope of discovery.
Personally, I think the analysisis the same, even if you're
talking about a run-of-the-millbreach of contract, because the
issue is really whether thereceiving party gets the full
(11:24):
value of the information underRule 34.
So to me, it's not different,but you'll have to keep that in
mind.
The court then looked at aNorthern District of Illinois
decision in the N-RAE MultiplanHealth, in which the parties
made similar arguments and thecourt permitted threading in
production against theplaintiff's arguments.
(11:44):
So in the N-RAE multi-planhealth case, another antitrust
action, the court essentiallydismissed plaintiffs' arguments
that they wouldn't get what theyneeded to if production was
threaded and allowed defendantsto produce a threaded
production.
The plaintiffs argued, sorry,but Judge Kim found that the
(12:07):
multi-plan decision was, quote,informative but not persuasive,
because the court did notprovide any insight as to its
reasoning.
Judge Kim then looked at theusability of the production if
it did not include thenon-inclusive emails.
And that's a lot of negatives tomanage mentally.
So hopefully you're still withme.
Plaintiff argued that thethreaded emails, instead of
(12:30):
individual emails maintained inthe ordinary course of business,
would impede their ability toleverage data visualization
tools to search and filter data,and that therefore defendant's
proposal failed to comply withRule 34B.
Defendant responded that its ESIprotocol, quote, ensures
information from non-inclusiveemails is preserved, close
(12:52):
quote, including all requestedmetadata, because it will split
conversations into their ownseparate threads and produce
attachments and information fromnon-inclusive emails, including
the body of the inclusive emailsand the supplemental metadata
field.
Defendant also argued that nocontent or metadata is altered
through the process ofthreading, and therefore
(13:14):
threading is consistent withRule 34B.
Now that's interesting becauseit seems to suggest that
defendants are going to providethe text of the data because it
says the body of the inclusiveemails.
But really, when the court looksat the analysis, that's not what
the defendant's saying.
They're saying they just want toprovide the metadata of those
lesser included emails.
So those are the two arguments.
(13:34):
Which way did the court go?
Well, the court sided with theplaintiffs, and the court's
ruling here is very instructive.
So I'm going to read the wholething to you.
It's a little bit long, but Iespecially love where Judge Kim
notes that the plaintiffs,quote, barely prevailed.
Here it is.
Despite defendants' assurances,the court sides with plaintiffs.
First, plaintiffs have requestedproduction of the emails as they
(13:57):
are ordinarily maintained, whichis the clearest default form of
production set forth in Rule 34.
But defendant proposes producingESI in a form that deviates from
the Rule 34 norm fromplaintiff's request and without
demonstrating that its proposedalternative is reasonably usable
as required.
This is insufficient to justifysetting aside plaintiff's
(14:18):
proposal, which indisputablycomplies with this rule.
Indeed, while defendant arguesthat email threading does not
alter content or metadata, thefact that defendant must program
an additional field to capturethe metadata at issue supports
plaintiff's argument thatwithholding non-inclusive emails
results in a loss of metadata.
The fact that the metadataplaintiffs seek can be provided
(14:41):
in an additional field does notmake it equivalent in terms of
searchability and usability.
Furthermore, unlike themulti-plan plaintiffs, here
plaintiffs have articulated aspecific need, I'll bet barely,
for the lost metadata in itsordinary form.
Defendant may be correct thattext-based searches are a
(15:01):
routine part of document review,but Rule 34B does not state that
a party can refuse to produceESI as ordinarily maintained
merely because the producingparty's alternative form is also
used in discovery.
Close quote.
(15:30):
The court stated that thatsection of the rule does not
require that a party seekingrelevant discovery justify its
request that ESI be produced inthe form in which it is
ordinarily maintained.
Defendant also objected to theburden of reviewing and
producing an unthreaded documentset.
And as such, the court thenturned to the proportionality
factors under Rule 26 B1.
(15:53):
In support of its argument, thedefendant submitted a
declaration from its servicesprovider that stated, stating
that without email threading,the defendant will incur, quote,
increased costs in hosting,review, and production.
But the declaration lacked anynumbers to substantiate that
position, a fact that both theplaintiffs and the court latched
(16:14):
onto.
Defendant also failed to conductany analysis of the six factors
on proportionality that are setforth in Rule 26B1.
Quote, beyond unspecified claimsof substantial burden that the
potential scope of discoverywill exacerbate.
Close quote.
That's from the court.
Now, if you follow the case ofthe week regularly, you know
(16:36):
that failure to provide afactual basis for your
arguments, any discovery, or toanalyze those six factors on
proportionality means yourmotion faces a very significant
uphill battle.
And by uphill, I'm talking abouta mountain in Colorado.
Now, here the court found thattestimony that threading, quote,
(16:56):
can materially reduce the numberof documents for review,
resulting in lower documenthosting costs and quicker
completion, close quote, lackedthe sufficient specificity to
assess the defendant's allegedburden.
Basically, there were no facts,no numbers, no quantities, no
time.
Similarly, the court found thatdefendants' claimed that the
(17:17):
lack of threading can result inhigher hosting costs, did not
have the required specificityand certainty.
According to the court, quote,nonspecific or speculative
claims are insufficient for thecourt to weigh defendants'
burden against the remainingproportionality factors in Rule
26 B1, close quote.
In sum, Judge Kim found that,quote, if given more evidence of
(17:41):
a specific substantial burdendefendant would incur, such as
reasonable estimates ofincreased review time or
financial projections reflectingsignificant increased hosting
costs, the court may finddefendant's burden outweighs the
benefit plaintiffs expect fromthe availability of additional
metadata.
And a more detailed argumentregarding the importance of the
(18:01):
metadata in resolving theissues, given the existence of
other tools to increasesearchability, might change the
calculus of a proportionalityanalysis.
But as it stands now, defendantfails to meet its burden to show
that his objection, to show itsobjection on the grounds of
proportionality.
With that, the court granted theplaintiff's motion and denied
(18:22):
the defendant's motion.
So, in essence, the plaintiffswin and they will be enabled to
retain all of the data in termsof lesser-included emails that
would be included in theproduction.
That was pretty unarticulatelystated.
All right, what are ourtakeaways from this case?
Well, here's what I don'tunderstand about why this motion
(18:43):
is even being argued.
Generally, and I certainlycannot speak for every review
platform out there, and I don'tknow which one the defendants
were using here.
But generally, a system thatallows for email threading in
review also allows for theproduction of that data set to
be made to include all lesserincluded or non-inclusive
(19:04):
emails, whatever you want tocall them.
Which means that the defendanthere can use email threading to
minimize its review cost, whichincidentally is the purpose of
email threading technology, andstill provide plaintiffs with a
complete production that allowsthem to search and filter the
full collection.
So, in essence, the technologyallows for plaintiffs to meet
(19:25):
their obligations and or to fordefendants to meet their
obligations under rule 34 andfor plaintiffs to be able to
receive the full collectionunder both 34 and 26.
Now, by trying to keep theplaintiffs from getting the same
data that defendant has here,the defendant was in clear
violation of Rule 34B, andthat's what the court found.
(19:46):
I'll bet barely, according tothe court.
Where the what the partiesreally should have done here is
to agree that the defendantcould have used email threading
for review to create consistencyin decisions and reduce review
time and agree to produce alllesser included emails and their
metadata to plaintiff.
These systems allow for that.
Although I have to tell you,from a practical perspective,
(20:08):
I'm not really convinced thatemail threading reduces your
review time because of thecomplexity of opening that
window and making thosedecisions on threads.
However, it does reduce thepotential for having different
decisions now on us on the samedocument.
Now, as we move forward with AI,Cal technologies that are in
(20:30):
essence doing a first round ofreview, we might start to do
this analysis a little bitdifferently.
Now, I completely concede that Iam Monday morning quarterbacking
here on the case of the week.
But I will also say that I findmore often than not that most of
these very costly motions don'thave to happen if the litigators
really understand how thesetools work and they're talking
(20:52):
to their teams.
It makes no sense for thedefendant here to say that email
threading reduces hosting costs.
It doesn't.
You still have the same amountof data, you're just leveraging
technology to review it in amore effective manner to ensure
consistency in decisions.
Any additional data that theywould have would be text-based
and extremely minimal in termsof quantity, meaning, and that's
(21:15):
how hosting costs arecalculated.
So I'm not surprised that thedefendants didn't have the
numbers here to be able toarticulate to the court in the
declaration.
Now, motions like this make mewonder what both sides were
doing.
Other protocols that are outthere, and plenty of them are in
Minerva 26, have includedspecific language that allows
the producing party to leverageemail threading and still
(21:37):
produce the full collection tocomport with Rule 34B.
Now, finally, I mentioned thisin the analysis, but I'll say it
again.
If you are not putting facts tosupport your arguments on
discovery motions, you willlose.
If your facts include costs,that means you have to show
numbers and they have to bereal.
They have to be based on fact,calculations from your actual
(22:00):
data set.
The same thing is true onproportionality.
There are six factors under Rule26 B1, and you have to analyze
all six of them for the court inorder to succeed on a
proportionality argument.
Defendant did not do that here.
Now there's no question that thediscovery of ESI is much more
complicated than paper discoveryever was.
(22:22):
But there is also no questionthat the case law and the rules
tell you exactly what you needto do.
Use them to your advantagebecause the party that
understands how to play the gamewins.
That's our case of the week forthis week.
Be sure to follow the Meet andConfer podcast on your favorite
podcast platform.
And if you're interested inseeing how Minerva 26 can help
(22:43):
you engage in better discoverystrategy, visit us at
Minerva26.com.
Thanks and have a great week.
Hi, and welcome to our case of the week segment of
the Meet and Confer podcast.
My name is Kelly Twigger.
I am this principal at ESIAttorneys, a boutique law firm
for e-discovery and informationlaw, as well as the CEO and
founder of Minerva 26, where wetake the insights from our
practice and provide a discoverystrategy tool to help litigators
(00:51):
understand and leverage thepower of ESI as evidence.
Our case of the week segment isbrought to you by Minerva 26 in
partnership with ACEDS.
If you're new to the podcast,each week I choose a recent
decisions on e-discovery issuesand highlight the practical
considerations for counsel toapply in their practice and for
other legal professionals toknow and understand.
(01:13):
If you love the podcast, I'dlove it if you would share it
with your colleagues andfriends.
Expanding our reach allows us tocontinue providing
knowledge-based content for youeach week.
Shout out this week to ChristianLee and to Bill Hamilton, who
both recommended our decisionfor this week's episode.
Our case this week comes to usfrom a class action titled Inray
(01:33):
Tech Federa, AntitrustLitigation, in which United
States Magistrate Judge KimJudge Young Kim, excuse me,
weighs in on whether a receivingparty is entitled to the
non-inclusive emails in an emailthread.
You've heard me refer to them aslesser included emails, and
we'll get into that.
This decision is importantbecause it identifies a key
(01:54):
analysis point in the productionof email.
And that's critical becauseemail is still the most
voluminous source of ESI inDiscovery.
As always, we'll include thelink to the decision and other
materials mentioned in the shownotes.
All right, let's dive in.
As I mentioned, this decisioncomes to us uh from September
25th, 2025, in the NRA TechFedera antitrust litigation.
(02:19):
I hope I'm pronouncing thatcorrectly, not really sure.
This is a decision from UnitedStates Magistrate Judge Young
Kim in the Northern District ofIllinois.
As always, we issue tag each ofthe decisions in our Minerva 26
database.
And this week's issues includeESI protocol, email threading,
privilege log, metadata, andproportionality.
(02:40):
All right, let's dive into thefacts of the case.
Now, the underlying case that'shappening here, I mentioned it's
a class action.
The class action involvesantitrust and RICO claims
related to defendant biogen'salleged scheme to limit
competition using unlawfulkickbacks to pharmacy benefit
managers in exchange forplacement of its multiple
(03:01):
sclerosis medication, TechFedera.
That places Tech Federa abovegeneric equivalents on the
formularies for drug companies.
If you don't know, as I didn't,what a drug formulary is, um,
according to the UnitedHealthcare website, which is my
insurance company, a formularyis just another name for a drug
(03:22):
list.
A formulary is the list ofgeneric and name brand
prescription drugs covered by aspecific health insurance plan.
Sometimes health planformularies are also referred to
as preferred drug lists.
The purpose of a drug formularyis to help manage which drug
drugs care providers canprescribe and that would be
(03:44):
covered by a health plan in2025.
The goal of a medical formularyis to make sure that the drugs
covered by a health plan aresafe, effective, and available
at a reasonable cost.
Health plan formularies aretypically created by a committee
set up by the plan's healthinsurance company.
The formulary committee wouldlikely include pharmacists and
doctors from various medicalareas.
(04:06):
This committee would then choosewhich prescription judge drugs
to include on the health planformulary.
A health plan may change itsformulary drug list from time to
time, and that may be becausenew drugs become available,
changes in treatment, or basedon new medical information.
So importance here is that TechFedera, essentially, I'm going
to guess its patent had expired.
(04:27):
So there were generic versionsof the drug available.
And the pharmaceutical companywanted Tech Federa to be listed
higher than the generics on thedrug plan formulary and thus get
recommended more, prescribedmore.
So better for income, right?
All right.
So that's what we're involvedhere in the background of this
case.
That's what we're fightingabout, and that's what we're
doing discovery on.
(04:48):
Now, procedurally, in this classaction, this decision is before
the court on cross motions fromthe parties regarding the entry
of an ESI protocol.
Now the court stayed discoveryfor both parties based on
anticipating a motion to dismissfrom the defendant, but allowed
the parties to exchange bothinitial disclosures under Rule
(05:09):
26 and to negotiate an ESIprotocol for the balance of the
case.
The parties agreed on all theissues for the ESI protocol
except for one related to emailthreading.
In essence, the defendant wantsto exclude what I refer to as
the lesser included emails in athread in production, but
provide metadata for thoseemails.
So no text, but metadata forthose lesser included emails.
(05:33):
The plaintiff objects, claimingthat failing to produce those
lesser included emails givesthem a less than full production
and limits their ability tosearch for those lesser included
emails.
All right, for those of you notfamiliar with what email
threading is, I covered this indetail on episode 66 of our case
of the week in the in-rate actospayer litigation, another
(05:54):
antitrust case.
If you're a Minerva 26 user, youhave access to that episode in
the case of the week module inour academy, so you can go check
that out.
For those of you that don't haveaccess, let me explain it a
little bit.
Email threading is a technologywithin a review platform.
There are dozens.
Lexby, disco, relativity, uh,reveal, everlaw, that eliminate
(06:16):
the need for a reviewer tocontinuously review the same
messages over and over again.
So think about the fact that ifyou've done review, because
emails get put in a thread whenone person responds or forwards
an earlier email, a productionmay include several to dozens of
the same email over and overagain.
And with human reviewers, youcan end up with different review
(06:40):
decisions applied to the sameemail in different threads.
The technology of emailthreading allows you to open a
window and take, identify all ofthe emails that are that are the
same textually and pull themtogether to be reviewed by one
person at a time.
That eliminates you havingmultiple reviewers seeing
(07:01):
messages from the same threadand perhaps coding them
differently.
It also allows you to apply aredaction to an email at one
time that can then be populatedacross that same email.
Again, the tool is text-based,text-based.
That's really key here becausewhat the defendants are trying
to argue here is that theplaintiffs shouldn't get the
text of those lesser-includedemails.
(07:24):
The issue becomes when youproduce emails that are part of
an email thread, and generallythe receiving party wants to
receive each individual email asa separate document because they
want to receive the associatedmetadata with the document to
allow them to search and filter.
If you've used a reviewplatform, you know that when you
have a thread, typically onlythe first or most inclusive
(07:46):
email would be listed as thedocument, and then there may be
10 to 12 emails below that.
Another approach is to produceeach individual email in the
thread.
Now, imagine, for example, ifyou have an email thread that
has 10 people on it and you'repreparing for a deposition of
John Doe, and John Doe is on twoemails, but he's not on the
(08:06):
other eight.
Essentially, when you're doingthat preparation, you want to
have that metadata to have thoseemails be able to be segregated
into individual documents asjust the two that went to John
Doe to be part of his depositionproduction.
Whereas if you don't have themetadata from the lesser two
emails and you only have thehighest thread or the full text
of those emails, if that threaddoesn't list John Doe on it, or
(08:30):
there's other metadata thatwould prevent it from being
contained in a search for JohnDoe's materials, then whoever is
prepping for the deposition willnot have the ability to use that
information.
It won't come up in a search.
Now, the federal rules of civilprocedure provide that
essentially both parties shouldhave the same information.
That's been a topic ofdiscussion at the Sedona
(08:50):
conference.
And I've had that discussionmultiple times here on the case
of the week and also on panelsthat I've spoken on.
Essentially, both parties shouldhave access and are entitled to
the same information.
Now, I can go off on a tangenthere and tell you that I think
we should all be producing datanatively, which would really
give both sides the access tothe information, but we're not
(09:11):
quite there yet.
All right, with that backgroundon threading, let's turn to what
Magistrate Judge Kim had to sayon this issue.
First, Judge Kim refers to thelesser-included emails as
non-inclusive based on anarticle that he cites.
I haven't heard that termbefore, but that's what the
court uses, so that's how I'llrefer to them for this case.
(09:32):
What's great about this case andwhy I wanted to cover it today
is the way that Judge Kim laysout his analysis.
If you want to argue about emailthreading, Judge Kim's decision
here and the N-Ray Actos payerlitigation are two you'll want
to include.
He also cites to a host of otherdecisions that are relevant.
He does, in fact, cite to theN-RAE Actos case, so that one
will be included in the link tothis week's decision.
(09:54):
But what's most interesting isthat in his analysis, Judge Kim
is looking for case law in theSeventh Circuit where he sits
that is precedential.
He specifically says that.
And frankly, we don't see a lotof that in e-discovery case law
because no one jurisdiction hasdeveloped a full body of law on
all of the issues raised by thediscovery of ESI.
(10:16):
Our legal landscape ine-discovery is constantly
evolving.
So we can't look just inside ourjurisdiction the way that we can
in other substantive areas ofthe law.
The facts of each case are socritical to the analysis and
discovery that looking at caselaw from across the country has
become the norm.
That's consistent here whenJudge Kim says that, quote, from
(10:39):
this court's perspective, thereis no binding precedent in the
Seventh Circuit regarding thisissue.
Second, the court notes thatthis is an antitrust matter and
that courts tend to liberallyconstrue the discovery rules in
antitrust cases because directevidence of antitrust claims is
difficult to obtain.
That may be important if you'retrying to apply the principles
(11:01):
of these cases to non-antitrustmatters.
So keep that in mind if you'rearguing email threading that you
need to think about the factthat both this case and the Enry
Actos case are both antitrustlitigation with that broader
scope of discovery.
Personally, I think the analysisis the same, even if you're
talking about a run-of-the-millbreach of contract, because the
issue is really whether thereceiving party gets the full
(11:24):
value of the information underRule 34.
So to me, it's not different,but you'll have to keep that in
mind.
The court then looked at aNorthern District of Illinois
decision in the N-RAE MultiplanHealth, in which the parties
made similar arguments and thecourt permitted threading in
production against theplaintiff's arguments.
(11:44):
So in the N-RAE multi-planhealth case, another antitrust
action, the court essentiallydismissed plaintiffs' arguments
that they wouldn't get what theyneeded to if production was
threaded and allowed defendantsto produce a threaded
production.
The plaintiffs argued, sorry,but Judge Kim found that the
(12:07):
multi-plan decision was, quote,informative but not persuasive,
because the court did notprovide any insight as to its
reasoning.
Judge Kim then looked at theusability of the production if
it did not include thenon-inclusive emails.
And that's a lot of negatives tomanage mentally.
So hopefully you're still withme.
Plaintiff argued that thethreaded emails, instead of
(12:30):
individual emails maintained inthe ordinary course of business,
would impede their ability toleverage data visualization
tools to search and filter data,and that therefore defendant's
proposal failed to comply withRule 34B.
Defendant responded that its ESIprotocol, quote, ensures
information from non-inclusiveemails is preserved, close
(12:52):
quote, including all requestedmetadata, because it will split
conversations into their ownseparate threads and produce
attachments and information fromnon-inclusive emails, including
the body of the inclusive emailsand the supplemental metadata
field.
Defendant also argued that nocontent or metadata is altered
through the process ofthreading, and therefore
(13:14):
threading is consistent withRule 34B.
Now that's interesting becauseit seems to suggest that
defendants are going to providethe text of the data because it
says the body of the inclusiveemails.
But really, when the court looksat the analysis, that's not what
the defendant's saying.
They're saying they just want toprovide the metadata of those
lesser included emails.
So those are the two arguments.
(13:34):
Which way did the court go?
Well, the court sided with theplaintiffs, and the court's
ruling here is very instructive.
So I'm going to read the wholething to you.
It's a little bit long, but Iespecially love where Judge Kim
notes that the plaintiffs,quote, barely prevailed.
Here it is.
Despite defendants' assurances,the court sides with plaintiffs.
First, plaintiffs have requestedproduction of the emails as they
(13:57):
are ordinarily maintained, whichis the clearest default form of
production set forth in Rule 34.
But defendant proposes producingESI in a form that deviates from
the Rule 34 norm fromplaintiff's request and without
demonstrating that its proposedalternative is reasonably usable
as required.
This is insufficient to justifysetting aside plaintiff's
(14:18):
proposal, which indisputablycomplies with this rule.
Indeed, while defendant arguesthat email threading does not
alter content or metadata, thefact that defendant must program
an additional field to capturethe metadata at issue supports
plaintiff's argument thatwithholding non-inclusive emails
results in a loss of metadata.
The fact that the metadataplaintiffs seek can be provided
(14:41):
in an additional field does notmake it equivalent in terms of
searchability and usability.
Furthermore, unlike themulti-plan plaintiffs, here
plaintiffs have articulated aspecific need, I'll bet barely,
for the lost metadata in itsordinary form.
Defendant may be correct thattext-based searches are a
(15:01):
routine part of document review,but Rule 34B does not state that
a party can refuse to produceESI as ordinarily maintained
merely because the producingparty's alternative form is also
used in discovery.
Close quote.
(15:30):
The court stated that thatsection of the rule does not
require that a party seekingrelevant discovery justify its
request that ESI be produced inthe form in which it is
ordinarily maintained.
Defendant also objected to theburden of reviewing and
producing an unthreaded documentset.
And as such, the court thenturned to the proportionality
factors under Rule 26 B1.
(15:53):
In support of its argument, thedefendant submitted a
declaration from its servicesprovider that stated, stating
that without email threading,the defendant will incur, quote,
increased costs in hosting,review, and production.
But the declaration lacked anynumbers to substantiate that
position, a fact that both theplaintiffs and the court latched
(16:14):
onto.
Defendant also failed to conductany analysis of the six factors
on proportionality that are setforth in Rule 26B1.
Quote, beyond unspecified claimsof substantial burden that the
potential scope of discoverywill exacerbate.
Close quote.
That's from the court.
Now, if you follow the case ofthe week regularly, you know
(16:36):
that failure to provide afactual basis for your
arguments, any discovery, or toanalyze those six factors on
proportionality means yourmotion faces a very significant
uphill battle.
And by uphill, I'm talking abouta mountain in Colorado.
Now, here the court found thattestimony that threading, quote,
(16:56):
can materially reduce the numberof documents for review,
resulting in lower documenthosting costs and quicker
completion, close quote, lackedthe sufficient specificity to
assess the defendant's allegedburden.
Basically, there were no facts,no numbers, no quantities, no
time.
Similarly, the court found thatdefendants' claimed that the
(17:17):
lack of threading can result inhigher hosting costs, did not
have the required specificityand certainty.
According to the court, quote,nonspecific or speculative
claims are insufficient for thecourt to weigh defendants'
burden against the remainingproportionality factors in Rule
26 B1, close quote.
In sum, Judge Kim found that,quote, if given more evidence of
(17:41):
a specific substantial burdendefendant would incur, such as
reasonable estimates ofincreased review time or
financial projections reflectingsignificant increased hosting
costs, the court may finddefendant's burden outweighs the
benefit plaintiffs expect fromthe availability of additional
metadata.
And a more detailed argumentregarding the importance of the
(18:01):
metadata in resolving theissues, given the existence of
other tools to increasesearchability, might change the
calculus of a proportionalityanalysis.
But as it stands now, defendantfails to meet its burden to show
that his objection, to show itsobjection on the grounds of
proportionality.
With that, the court granted theplaintiff's motion and denied
(18:22):
the defendant's motion.
So, in essence, the plaintiffswin and they will be enabled to
retain all of the data in termsof lesser-included emails that
would be included in theproduction.
That was pretty unarticulatelystated.
All right, what are ourtakeaways from this case?
Well, here's what I don'tunderstand about why this motion
(18:43):
is even being argued.
Generally, and I certainlycannot speak for every review
platform out there, and I don'tknow which one the defendants
were using here.
But generally, a system thatallows for email threading in
review also allows for theproduction of that data set to
be made to include all lesserincluded or non-inclusive
(19:04):
emails, whatever you want tocall them.
Which means that the defendanthere can use email threading to
minimize its review cost, whichincidentally is the purpose of
email threading technology, andstill provide plaintiffs with a
complete production that allowsthem to search and filter the
full collection.
So, in essence, the technologyallows for plaintiffs to meet
(19:25):
their obligations and or to fordefendants to meet their
obligations under rule 34 andfor plaintiffs to be able to
receive the full collectionunder both 34 and 26.
Now, by trying to keep theplaintiffs from getting the same
data that defendant has here,the defendant was in clear
violation of Rule 34B, andthat's what the court found.
(19:46):
I'll bet barely, according tothe court.
Where the what the partiesreally should have done here is
to agree that the defendantcould have used email threading
for review to create consistencyin decisions and reduce review
time and agree to produce alllesser included emails and their
metadata to plaintiff.
These systems allow for that.
Although I have to tell you,from a practical perspective,
(20:08):
I'm not really convinced thatemail threading reduces your
review time because of thecomplexity of opening that
window and making thosedecisions on threads.
However, it does reduce thepotential for having different
decisions now on us on the samedocument.
Now, as we move forward with AI,Cal technologies that are in
(20:30):
essence doing a first round ofreview, we might start to do
this analysis a little bitdifferently.
Now, I completely concede that Iam Monday morning quarterbacking
here on the case of the week.
But I will also say that I findmore often than not that most of
these very costly motions don'thave to happen if the litigators
really understand how thesetools work and they're talking
(20:52):
to their teams.
It makes no sense for thedefendant here to say that email
threading reduces hosting costs.
It doesn't.
You still have the same amountof data, you're just leveraging
technology to review it in amore effective manner to ensure
consistency in decisions.
Any additional data that theywould have would be text-based
and extremely minimal in termsof quantity, meaning, and that's
(21:15):
how hosting costs arecalculated.
So I'm not surprised that thedefendants didn't have the
numbers here to be able toarticulate to the court in the
declaration.
Now, motions like this make mewonder what both sides were
doing.
Other protocols that are outthere, and plenty of them are in
Minerva 26, have includedspecific language that allows
the producing party to leverageemail threading and still
(21:37):
produce the full collection tocomport with Rule 34B.
Now, finally, I mentioned thisin the analysis, but I'll say it
again.
If you are not putting facts tosupport your arguments on
discovery motions, you willlose.
If your facts include costs,that means you have to show
numbers and they have to bereal.
They have to be based on fact,calculations from your actual
(22:00):
data set.
The same thing is true onproportionality.
There are six factors under Rule26 B1, and you have to analyze
all six of them for the court inorder to succeed on a
proportionality argument.
Defendant did not do that here.
Now there's no question that thediscovery of ESI is much more
complicated than paper discoveryever was.
(22:22):
But there is also no questionthat the case law and the rules
tell you exactly what you needto do.
Use them to your advantagebecause the party that
understands how to play the gamewins.
That's our case of the week forthis week.
Be sure to follow the Meet andConfer podcast on your favorite
podcast platform.
And if you're interested inseeing how Minerva 26 can help
(22:43):
you engage in better discoverystrategy, visit us at
Minerva26.com.
Thanks and have a great week.
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