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A Case of ESI in Lost E-Mail Attachments

April 29, 2008

A Case of ESI in Lost E-Mail Attachments

New York Law Journal, April 25, 2008

This article discusses three decisions made by the U.S. District Court for the Northern District of New York, the first of which is of interest to this blog. In the case of PSEG Power New York Inc. v. Alberici Constructors Inc., PSEG provided emails both in electronic and paper form. Assuming providing both types would help their case, PSEG actually failed to produce the attachments that went along with some of the e-mails. While some of the attachments were sporadically included in the hard copies, none of them were included in the electronic ones due to a technical error in the collection process.

Alberici pushed back, arguing that PSEG should try again and attempt to produce electronic evidence in its entirety, attachments and all. PSEG declined, due to the cost and obligation of reproducing the evidence. In the end, the judge settled the dispute by forcing PSEG to reproduce the e-mails, in their entirety, and bear the cost in doing so.

“According to the court, although Rule 34 of the Federal Rules of Civil Procedure absolves a party from producing electronically stored information in more than one form, the party must still produce the information as it is kept in the usual course of business or organize it to correspond to the discovery requests. Neither before the 2006 amendments to the federal rules nor now could a party dump an unorganized mass of documents on another party. The court ruled that producing e-mail without identifying their corresponding attachments, whether in hard copy or electronic form, fails to meet Rule 34’s requirements.”

We’re glad to see that the courts are recognizing the various forms of electronic evidence and are forcing companies to adhere to the FRCP. In this case, Alberici could have been left out to dry if the court hadn’t recognized the importance of the attachments associated with the emails in question. Without the attachments, who knows which part of the story would have remained silent in court?

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