Federal Lawyer

January, 1999

Feature

E-MAIL DISCOVERY: THE DUTIES, DANGER AND EXPENSE

Timothy Q. Delaney [FNa1]

Copyright ©  1999 by the Federal Bar Association; Timothy Q. Delaney

Recent headlines signal the need for great care regarding e-mail: "Corporate Law Department Stung by Mishandled E-Mail." [FN1] "Judge Fines Procter & Gamble for Not Saving E-Mail." [FN2] "Absence of Proper Guidelines for E- Mail Use Can Create Headaches During Discovery." [FN3]

In the last few years, corporate America has wholeheartedly embraced e-mail. At many corporations, e-mail has become the preferred form of communication. Accompanying this explosion in the use of e-mail has been a host of litigation problems. Courts and litigants have struggled with the myriad discovery issues that have been raised. Currently, no clear rules have emerged, but some general guidelines have been established. This article identifies the duties a litigant faces in preserving and producing relevant e-mail in discovery, the penalties a litigant will face for violation of these duties, and the likely expense that a litigant will incur in the process. A recent case that illustrates these topics is then discussed. In addition, the article will also briefly discuss the dangers e-mail poses to preservation of the attorney/client privilege.

Duty to Preserve Information

Parties have a duty to preserve information that they know is relevant to ongoing or potential litigation. [FN4] Although a litigator is under no duty to preserve every document in its possession, regardless of relevance of litigation, "some duty must be imposed ... lest the fact-finding process in our courts be reduced to a mockery." [FN5]

While an official discovery request clearly puts a litigant on notice of the relevance of evidence, courts will often find notice even before such a request. For instance, extensive litigation may provide notice of the duty to preserve evidence. [FN6] A party embroiled in litigation for several years could hardly claim that it lacked notice of the issues in the lawsuit. Additionally, service of a complaint may serve as the requisite notice.  [FN7] This would be the case particularly for a complaint that provided a detailed overview of the pertinent facts of the matter.

Some courts have imputed constructive notice of the relevance of evidence. The courts have found that a litigant knew or should have known that the material would be relevant in litigation. [FN8] A reasonableness standard is imposed to preclude a party from destroying relevant material before it is specifically requested. At the opposite end of the spectrum, one court held that despite the presence of discovery requests and admissions by the party that they knew the information was relevant, a court order was necessary because an order would have delineated the scope of the party's duties and provided clear evidence that the party was on notice. [FN9]

The duty to preserve evidence applies to large, as well as small, corporations. For example, in referring to a large corporation with extensive records and documentation, one court held that "a business which generates millions of files cannot frustrate discovery by creating an inadequate filing system." [FN10] Moreover, courts may sanction destruction of evidence that results merely from the absence of an effective document retention policy.  [FN11] In such a situation, the failure to take measures to safeguard information can equate to a willful indifference to the duty to preserve.

Violation of Duty to Preserve: Spoliation

"Spoliation" is the intentional destruction or alteration of evidence.   [FN12] The exercise of sanctioning power in cases of spoliation is seen as one manifestation of a federal court's inherent authority to "regulate litigation and to sanction litigants for abusive practices." [FN13] The inherent authority to sanction is often compared to Rule 37 of the Federal Rules of Civil Procedure. Rule 37 grants courts the authority to sanction litigants for failure to comply with discovery orders. [FN14] Courts have described the inherent power to sanction for spoliation as "broader and more flexible" than that conferred by Rule 37 because it is grounded in the traditional authority granted courts to manage their affairs. [FN15]

There is a potential limitation to a district court's exercise of inherent authority to punish spoliation. Some courts have required a finding of bad faith or willful abuse of the judicial process on the part of the guilty party before sanctions may be imposed. [FN16] In applying this requirement, the Fifth Circuit stated that "in the context of the federal court's inherent power," "bad faith" is judged by "necessarily stringent" standards. [FN17]

Case law reveals that the level of sanctionable wrongdoing can vary widely. For example, a California district court found bad faith based on (1) "failure to preserve critical documents after commencement" of litigation; (2) "failure to implement procedures to monitor or control document destruction after the commencement" of litigation; and (3) "erasure of computer tapes and discs which could have been utilized to store some of the destroyed information relatively simply." [FN18] Similarly, a Colorado district court found bad faith based on a party's failure to preserve software that was critical to the litigation by destroying old versions as new revisions were installed. [FN19] The court found bad faith based on this conduct, despite the fact that such a practice was commonly followed in the industry, for legitimate reasons, and was not found to be inherently wrongful. [FN20] Recently, a Pennsylvania district court entered a sanction for spoliation after expressly finding that the party did not willfully or fraudulently destroy evidence. [FN21] The court declined to impose the harsh sanction of default for negligent destruction and instead imposed a monetary sanction.

The purpose of sanctions is to compensate the party that is prejudiced by the destruction, to punish the wrongdoer, and to deter future transgressions.  [FN22] Once a court determines that a sanction for the destruction of evidence is appropriate, the court has considerable discretion to fashion a remedy. [FN23] Among the sanctions that the courts have levied are the following: monetary award; [FN24] dismissal; [FN25] order deeming facts established; [FN26] and jury instruction allowing an adverse inference.  [FN27] Before any sanctions may be levied, however, there must be a finding of prejudice to the opposing party as a result of the destruction of evidence. [FN28]

One of the most severe sanctions a court may impose on a party is dismissal and default. Courts generally require three findings before imposing such a sanction: (1) bad faith or willful abuse of the judicial process; (2) serious prejudice to the opposing party; and (3) absence of alternative sanctions to punish adequately the guilty party and deter future violations.  [FN29]

Discovery Expense for E-Mail

Federal district courts have not been sympathetic to parties' arguments of undue expense and burden when faced with requests for relevant e-mail. Prior to the emergence of e-mail, it had long been settled that a party faces a very heavy burden to avoid producing relevant evidence. [FN30] For example, in Baxter Travenol Lab. Inc. v. LeMay, [FN31] the court rejected an assertion of undue burden to avoid producing relevant information. The plaintiff asserted that production of the requested documents would require a search of 2.8 million documents, cost more than $80,000 and require "hundreds" of hours.  [FN32] The court rejected the argument on the basis that the burden was a product of the plaintiff's own unwieldy record-keeping system. [FN33]

Courts take a similar position with regard to production of e-mail documents. In the In re Brand Name Prescription Drugs Antitrust Litig., a class action antitrust case pending in the U.S. District Court for the Northern District of Illinois, a party argued that it should not have to search at its own expense "at least 30 million pages of e-mail data stored on its ... backup tapes" to retrieve and produce responsive messages. [FN34] While the court recognized that the retrieval would be expensive, it found that the production nevertheless would need to proceed. [FN35] The court held that when a party chooses an electronic storage method for information, the need for a retrieval system is an "ordinary and foreseeable risk." [FN36]

A cottage industry of companies assisting with the production and retrieval of electronic data and litigation has recently arisen. In Seattle, Wash., two companies specializing in electronic discovery are Electronic Evidence Discovery Inc. and Computer Forensics Inc. Both companies work with litigants or potential litigants in dealing with the production or retrieval of electronic data in litigation. According to Ken Shear of Electronic Evidence Discovery, "Larger corporate litigants routinely run up bills of $100,000 or more in identifying, locating and copying computerized data. Moreover, seven figure price tags are not unheard of."

The larger bills typically involve companies that are unprepared for the litigation demands of e-mail discovery. With proper planning, substantial expense can be saved. Companies should prepare by following three steps: (1) develop an electronic document retention policy, which minimizes the period such documents are stored; (2) formulate a litigation response, which includes a process for identifying and saving relevant data at the inception of litigation; and (3) perform a litigation risk assessment to identify and eliminate potential unnecessary costs. Clearly, corporations need to be mindful of this potential expense as they enter litigation.

An Illustrative Case: P&G v. Haugen

One recent example of the changes e-mail is forcing in the legal process is a case involving Procter & Gamble, the world's largest manufacturer and distributor of personal and home care products, and Amway Corporation, one of P&G's competitors in the personal and home care products market. The case raises important questions about dealing with discovery requests for electronic correspondence and communications. It also offers some valuable lessons about dealing with the costs and burdens incurred when e-mail is included in discovery.

P&G was the plaintiff in a lawsuit against Amway Corp. P&G's failure to retain its own e-mail files while seeking broad discovery of Amway's e-mail led a Utah district court to sanction P&G, forcing the company to pay Amway $10,000. The district stated that P&G's failure to make its e-mail correspondence available to Amway Corp. lawyers was a violation of the rules of discovery. The Procter & Gamble Co. v. Haugen, No. 1:95CV0094K, 1998 U.S. Dist. LEXIS 5689 (D. Utah April 17, 1998).

P&G Issues Broad Discovery Requests Which Include E-Mail

In August 1995 Procter & Gamble had sued an independent distributor of Amway products. Even though Amway Corp. was not named as a party, P&G immediately served the company with a subpoena seeking 30 broad categories of documents, including electronic data, or e-mail. The subpoena included the following legal notice:

   The Amway Corporation now has a legal obligation not to destroy or dispose of any documents, materials (electronic data) or other tangible things commanded for production ...

Amway's Efforts To Comply

According to Mike Mohr, Amway's deputy general counsel, "We took this notice seriously. We promptly took steps to preserve all e-mail on a daily basis while we investigated the best way to search for responsive materials. From the outset we recognized the extreme burden of this type of discovery, given the fact that e-mail has become the dominant form of communication at Amway."

Mohr noted that on a given day, it is not unusual for him to receive as many as 100 e-mails. "With more than 14,000 employees worldwide, the amount of e- mail created on a daily basis is remarkable," he added.

Amway determined that the burden of retaining and searching every daily back-up of its e-mail would overwhelm Amway's capabilities. One obstacle was Amway's use of Lotus cc:Mail as its company-wide e-mail software. Lotus cc:Mail uses a proprietary encryption method that protects the privacy of each employee's messages. Consequently, each user's files would have to be separately deciphered and then searched. "Amway simply did not have the resources to complete this laborious task for the files of thousands of individuals for the hundreds of days of backup tapes P&G sought," explained Gary Pipping, Amway's cc:Mail Administrator.

P&G's Request Remained Onerous

In view of the considerable burden attendant to the retention and search of its e-mail, Amway sought to negotiate a solution with P&G. James R. Sobieraj at Brinks Hofer Gilson & Lione, Amway's outside counsel, said, "Given that P&G would face the same difficulties, and likely more so based on its far larger size, we thought we could agree to a reasonable, reciprocal approach." However, no such agreement was attainable. P&G's counsel continued to insist that Amway retain and search its backup tapes from "October 25, 1994, through the present time and into the future."

P&G's initial requests all came to Amway while the company was a third party and not a named defendant. In April 1996, however, P&G amended its original complaint to include Amway as a defendant.

Once Amway became a party to the lawsuit, the company had standing to seek discovery of P&G. Again, Amway contacted P&G seeking a reasonable e-mail retention process that would apply equally to both sides' e-mail systems. P&G refused any agreement.

Failing to reach an agreement, Amway moved for a protective order that would place reasonable limits on the amount of e-mail it should retain and the method of search. P&G vigorously opposed, arguing that it was "a naked request for judicially sanctioned spoliation on a grand scale."

"Amway brought its motion to avoid any possible charges of destruction of evidence," said Sobieraj. "Before Amway returned to its regular document retention, Amway wanted to make sure the Court approved."

Over the course of several hearings, the matter was argued exhaustively. Realizing the court would require an extensive search of the e-mail system. Amway's counsel addressed the court as follows:

   AMWAY'S COUNSEL: Your Honor, I don't know if this point came across in our briefs, but we expect a company like Procter & Gamble has databases, too, and the type of search we are proposing of doing of our own, the same ground rules are going to apply when they have to go search their databases for our responsive documents. So this is a two-edged sword and we understand going into it with that perspective. And so these suggestions are very well taken.

   THE COURT: How do you react on that?

   P&G'S COUNSEL: I think that would be helpful, Your Honor.

At The Same Time P&G Provided Lackluster E-Mail Retention

Following the resolution of Amway's motion for a protective order, the company pursued discovery of P&G's e-mail retention efforts. Surprisingly, given the back and forth of the preceding months, P&G had made little effort to save its e-mail records. Though P&G aggressively sought to have the court direct Amway to save its e-mail and conduct burdensome searches, P&G was simultaneously discarding its e-mail files on a daily basis.

On March 5, 1997, more than 18 months after P&G issued its first warning to Amway to preserve its e-mail, and following the court's protective order outlining Amway's e-mail retention obligations, P&G backed up 5 percent of its e-mail systems. P&G's backup, however, did not include five key employees identified by P&G itself as having information relevant to the litigation.

P&G then searched this limited batch of e-mails for 11 key words, in stark contrast to the 70 words P&G demanded that Amway use in its searches. This 11- term search identified a large number of documents, leading P&G to whittle the list of search terms down even further. As a result of P&G's late and limited backup and search, the recovered documents were dated no earlier than one year following P&G's filing of its original suit. There were no documents on the system during the time-frame of the key events leading up to P&G's suit.

According to Sobieraj, "We were shocked by the cavalier approach P&G took to retaining and searching its own e-mail. That P&G would mock the very discovery process it used to create as onerous a search and retention of Amway's e-mail as possible was incomprehensible to us."

As a result of P&G's actions, Amway filed a motion for sanctions against P&G. Within three weeks of the hearing on Amway's motion, the court ordered P&G to pay Amway $10,000 for P&G's bad faith destruction of e-mail records.

The $10,000 sanction against P&G for destroying its documents is a significant ruling as the legal system grapples with the advent of new technology in the workplace and its effects on the legal system. P&G's destroyed e-mail messages, now lost forever, could have been instrumental in determining the facts of the case before the court.

E-mail and the Attorney/Client Privilege

Only a few courts have rendered decisions on e-mail and privilege issues.   [FN37] None have addressed the two main issues: (1) whether use of the Internet to transmit privileged e-mail constitutes a waiver; and (2) whether widely-circulated, intracompany e-mail passing through the legal department may be maintained as privileged.

Internet

It has long been settled that sharing a communication with a third party destroys the attorney/client privilege. [FN38] However, if the disclosure is inadvertent, waiver may not occur as long as the party took "reasonable precautions" to prevent it. [FN39] Thus, with regard to privileged e-mail sent over the Internet, the issue for the courts is what, if any, reasonable precautions to preserve confidentiality must be taken.

In the absence of court opinions, guidance must come from other sources. This issue has been considered in advisory opinions by several state bars. The opinions were rendered in connection with each state's counterpart to Rule 1.6, Model Rules of Professional Conduct, which concerns an attorney's duty to preserve his or her client's confidences. The majority view in these advisory opinions is that unencrypted e-mail on routine matters carries with it adequate assurances of confidentiality and does not violate Rule 1.6, but that highly sensitive matters require enhanced security. [FN40] If the courts follow the reasoning of the majority of state bars, sending privileged e-mail over the Internet would not constitute a waiver.

Several factors suggest that Internet e-mail should be considered confidential and not result in a privilege waiver. First, unauthorized interception of an Internet message is a federal crime pursuant to the Electronic Communications Privacy Act just like the unauthorized wiretapping of a telephone line. [FN41] Second, the act further provides that "[n]o otherwise privileged ... electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character." [FN42] Third, there is no basis to conclude that Internet communications are any less private than telephones because messages on either are similarly difficult to intercept. [FN43] Nevertheless, caution is recommended in view of the unsettled state of the law.

Intracompany E-Mail

E-mails within a company may take on a life of their own. For example, an e-mail sent to one person can then be forwarded to several additional persons. Each person may add to the message, thereby creating a lengthy string of communications on a particular subject. To the extent attorneys are participants in the string, the issue of privilege arises. A strong argument may be made that some of these e-mails will not be considered privileged.

The attorney-client privilege applies to documents that contain communications intended to be confidential and where a dominant purpose of communication is to secure legal advice. [FN44] For communications that are forwarded to a number of non-legal representatives, it is difficult to defend the privilege. [FN45] Under such circumstances, it may be argued that the primary purpose of the communication is for nonlegal business purposes and therefore the privilege does not apply. [FN46] The very nature of e-mail communications, given the relative ease with which copies may be circulated, suggests that this problem is very likely to occur.

E-mail often can operate in a manner similar to a meeting attended by employees from various departments. Just as minutes of a business meeting attended by attorneys are not necessarily privileged, [FN47] e-mail discussions may also not be protected. However, instead of oral discussions that may only be briefly recorded in meeting minutes, e-mail provides a complete record of everyone's comments. Corporations need to be aware of these risks and take steps to prevent inadvertent waiver. The advantages of fully integrating legal counsel in business decisionmaking must be balanced against the potential harm from loss of privilege.

Suggested Preventive Medicine

E-mail discovery is still relatively new. Nevertheless, its impact on litigation can be considerable. Corporations should consider whether to employ some of the following measures:

. Involve counsel in the design of the e-mail system

When litigation ensues, corporate counsel typically will have the responsibility for gathering relevant documents for discovery. If corporate counsel is ignorant of the e-mail system, the possibility increases that e-mail will be lost because of inadvertent destruction. A party may be hard-pressed to explain to a court that ignorance and not bad faith was the reason for the e- mail's destruction. Therefore, counsel should be familiar with the company's e- mail system. Optimally, counsel should be involved during the design of the system to make certain that the system will have the capability to economically facilitate potential discovery without interfering with ongoing business.

Develop an e-mail document retention policy

Based on the needs of a particular business, a system for periodically deleting old files should be employed. A business goal should be to have as short a retention period as possible. While valuable documents for future litigation may conceivably be lost, this concern is usually overstated. Anything of significance is usually reduced to paper, or will be recalled by witnesses. One thing is guaranteed, however. The more documents that exist when the discovery duty arises, the greater will be the expense to search and retrieve responsive materials.

. Educate employees

Inform your employees about the e-mail retention policy. Also, explain to them that proper business decorum must be adhered to with e-mail just as it must be with any other type of business communication. Set up usage guidelines and provide examples of improper usage. Finally, inform all employees that e- mail is neither confidential nor short-lived. Tell them that in litigation, long deleted e-mail may be recovered and used by a litigation adversary.

. Save a back-up at the inception of litigation

As soon as litigation becomes reasonably imminent, a back up of relevant e- mail files should be set aside and maintained. In addition, all e-mail users should be alerted to save future relevant e-mail for possible production in the litigation. These efforts should be documented to provide evidence again any potential charges of spoliation.

. Cooperate with the opposing party

Assuming your adversary in litigation also has an e-mail system, propose that each party perform a back up and search of comparable degree. If the opposing party faces a huge burden, both parties should be willing to compromise so that each party can produce relevant e-mail at the least possible cost without the court's involvement.

. Assume that attorney internal e-mail may have to be produced

All attorneys should be advised that their e-mail might be discoverable. Therefore, any communications of unusual sensitivity should not be made via e- mail. To the extent an attorney has doubts, he or she should label the e-mail with a privilege caption and instruct the recipient not to copy or forward the message to others. Distribution of sensitive messages should be only on a "need to know" basis.

. Do not send sensitive e-mail over the Internet

Although difficult, e-mail sent over the Internet can be intercepted. Moreover, the legal effect on privilege of such transmission is still far from clear. If you must use the Internet, encrypt your files. There are several decent commercial products available such as Encryption Plus (R) from PC Guardian or PGP ("Pretty Good Privacy") 5.0 from PGP Incorporated.

Conclusion

The impact of e-mail on litigation is just starting to be felt. Corporations would be well advised to plan for likely discovery of their e-mail to avoid massive expense, to safeguard themselves from charges of document destruction, and to avoid the loss of privileged information. Although the legal terrain is not yet well defined, recent case law suggests that some simple precautions are appropriate.

[FNa1]. Timothy Q. Delaney is a shareholder of the Chicago law firm of Brinks Hofer Gilson & Lione. He specializes in litigation and can be reached at (312) 321-4200 or via e-mail at TQD@BrinksHofer.com. Copyright  Copr. 1998 Timothy Q. Delaney

[FN1]. Bruce Rubenstein, CORP. LEGAL TIMES, Sept. 1997, at 1.

[FN2]. Sheila R. McCann, THE SALT LAKE TRIBUNE, April 22, 1998, at B-1.

[FN3]. Mark E. Staib, ABA LITIG. NEWS, July 1996, at 4.

[FN4]. See Computer Assocs. Int'l v. American Fundware, 133 F.R.D. 166, 168-169 (D. Colo. 1990); National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 554 (N.D. Cal. 1987); In re Air Crash Disaster near Chicago, Illinois on May 25, 1979, 90 F.R.D. 613, 621 (N.D. Ill. 1981).

[FN5]. Bowmar Instrument Corp. v. Texas Instruments Inc., 25 Fed. R. Serv. 2d (Callaghan) 423, 427 (N.D. Ind. 1977).

[FN6]. See National Ass'n of Radiation Survivors, 115 F.R.D. at 557.

[FN7]. See Bowmar, 25 Fed. R. Serv. 2d at 427 (The policy that justifies a finding of notice even before discovery requests are served is to discourage litigants from "placing [themselves] in a position where [they] could not comply with future discovery requests ... or orders of the Court."); Turner v. Hudson Transit Lines, 142 F.R.D. 68, 73 (S.D.N.Y. 1991); but see Hanson v. Dean Witter Reynolds Inc., 887 F. Supp. 669, 675-676 (S.D.N.Y. 1995) (acknowledging that a complaint may put a litigant on notice, but refusing to impose a duty even after complaint had been filed).

[FN8]. See Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984); Bowmar Instrument Corp., 25 Fed. R. Serv. 2d at 427.

[FN9]. See The Procter & Gamble Co. v. Haugen, No. 95 CV 0094K, 1998 U.S. Dist. LEXIS 5689, at *20-21 (D. Utah Apr. 17, 1998) (the court did make an exception, however, for the party's failure to preserve the e-mail of five employees that it had identified itself as having relevant information).

[FN10]. United States v. ACB Sales & Service, 95 F.R.D. 316, 318 (D. Ariz. 1982).

[FN11]. See Telectron v. Overhead Door Corp., 116 F.R.D. 107, 123 (S.D. Fla. 1987).

[FN12]. See Black's Law Dictionary 1401 (6th ed. 1990).

[FN13]. Telectron, 116 F.R.D. at 126. See also Capellupo v. FMC Corp., 126 F.R.D. 545, 550-51 (D. Minn. 1989).

[FN14]. See Fed. R. Civ. P. 37(b)(2).

[FN15]. Telectron, 116 F.R.D. at 126 (citing VanBronkhorst v. Safeco Corp., 529 F.2d 943, 951 (9th Cir. 1976)).

[FN16]. See Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990).

[FN17]. Id. (quoting Batson v. Neal Spe lce Assocs. Inc., 805 F.2d 546, 550 (5th Cir. 1986)).

[FN18]. Wm. T. Thompson Co., 593 F. Supp. at 1454.

[FN19]. See Computer Assocs. Int'l, 133 F.R.D. at 169.

[FN20]. See id.

[FN21]. See Applied Telematics v. Sprint Communications Co., No. 94- 4603, 1996 U.S. Dist. LEXIS 14053, at *13-14 (E.D. Pa. Sept. 17, 1996) (the court granted sanctions for negligent destruction of evidence).

[FN22]. See Capellupo, 126 F.R.D. at 553.

[FN23]. See id. at 551.

[FN24]. See, e.g., National Ass'n of Radiation Survivors, 115 F.R.D. at 558-59.

[FN25]. See, e.g., Computer Assocs., 133 F.R.D. at 170.

[FN26]. See, e.g., Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 281 (8th Cir. 1995).

[FN27]. See, e.g., Nation-Wide Check Corp. v. Forest Hills Distrib., 692 F.2d 214, 219 (1st Cir. 1982).

[FN28]. See Dillon v. Nissan Motor Corp., 986 F.2d 263, 267 (8th Cir. 1993); Strothers Patent Corp. v. Nestle Co., 558 F. Supp. 747, 766 (D.N.J. 1981).

[FN29]. See Computer Assocs. Int'l, 133 F.R.D. at 169; Capellupo, 126 F.R.D. at 552.

[FN30]. See, e.g., McLeod, Alexander, Powell & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990); Blankenship v. The Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). See also, Rockaway Pix Theatre v. Metro- Goldwyn-Mayer Inc., 36 F.R.D. 15, 17 (E.D.N.Y. 1964) ("all sources of information should be made available regardless of expense ... and the mere fact that production would be onerous or inconvenient is not, per se, grounds for denial").

[FN31]. 93 F.R.D. 379 (S.D. Ohio 1981).

[FN32]. Id. at 383.

[FN33]. See id.

[FN34]. Nos. 94 C 897, MDL 997, 1995 WL 360526, at *1 (N.D. Ill. June 15, 1995).

[FN35]. See id. at *2-3.

[FN36]. Id. at *2.

[FN37]. See, e.g., International Marine Carriers v. United States, No. 95-CIV-10670, 1997 U.S. Dist. LEXIS 4155, at *8-9 (S.D.N.Y. April 3, 1997); Stopka v. Alliance of Amer. Ins., No. 95 C 7487, 1996 U.S. Dist. LEXIS 5466, at *19-20 (N.D. Ill. April 23, 1996); Int'l Bus. Mach. v. Comdisco, No. 91- C-07-199, 1992 Del. Super. LEXIS 67, at *1-4 (Mar. 11, 1992).

[FN38]. See United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983);  Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408 (M.D.N.C. 1992).

[FN39]. See Gray v. Bicknell, 86 F.3d 1472, 1483-84 (8th Cir. 1996) (providing a five-step analysis to evaluate whether inadvertent disclosure constituted a waiver in a particular case).

[FN40]. Alaska Ethics Opinion 98-2 (1998); Illinois Ethics Opinion 96-10 (1997); North Dakota Ethics Opinion, 97-09 (1997); Arizona Ethics Opinion, 97- 08 (1997). But see Iowa Ethics Opinion 96-1 (1996) (requiring encryption or client consent for "non-secure communication"). See, e.g., William Freivogel, Internet Communications--Part II, A Larger Perspective, 8 LOSS PREVENTION JOURNAL 1, at 2 (Jan. 1997) for view that unencrypted Internet communications do not waive the privilege. See, e.g., Note, E-mail: The Attorney-Client Privilege Applied, 66 GEO. WASH. L. REV. 624 (1998) for view that unencrypted Internet communications constitute a waiver.

[FN41]. See 18 U.S.C. § §  2510 et. seq.

[FN42]. 18 U.S.C. §  2517(4).

[FN43]. See, e.g., William Freivogel, Internet Communications--Part II, A Larger Perspective, 8 LOSS PREVENTION JOURNAL 1, at 2 (Jan. 1997).

[FN44]. United States Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 163 (E.D.N.Y. 1994).

[FN45]. See Procter & Gamble v. Haugen, No. 1:95-CV-94, slip op. at 2 (D. Utah Mar. 26, 1997). See also Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987) (holding that business documents sent to corporate officers and employees, as well as to the corporation's attorneys, do not become privileged automatically).

[FN46]. See In re Grand Jury Subpoena, 731 F.2d 1032, 1037 (2nd Cir. 1984); North Shore Gas Co. v. Elgin, Joliet & Eastern Ry. Co., 164 F.R.D. 59, 61 (N.D. Ill. 1995); North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 517 (M.D.N.C. 1986).

[FN47]. See Simon, 816 F.2d at 403. See also Teltron Inc. v. Alexander, 132 F.R.D. 394, 396 (E.D. Pa. 1990) (holding that documents that are unclear as to whether they sought business advice, legal advice, or both, are not privileged).

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