The Courts face some problems with discovery of "EMail Strings". Everyone is familiar with them. They are strings of EMail upon EMail text, each repeated with each "Reply" in the same string. One of the problems Courts face with EMail Strings is how to determine which if any texts are privileged and which are not.
Specifically, suppose one EMail text is privileged. When a person clicks on "Reply To All" and sends the Reply EMail to other people besides the author of the privileged EMail, can the original EMail still be privileged, or not?
One Court recently supplied its answer to this question, in an Order entered by a Magistrate Judge: Look at who sent and received the most recent EMail in the string. "Thus, whether the text repeated in an email string remains privileged is determined by analysis of the most recent email." Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co., Download Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co. (E.D. Cal. Case No. 2-07-1744, Magistrate Judge Opinion Filed March 30, 2010) also published as 265 F.R.D. 510, 517 n.9, 2010 WL 1266926 *4 n.9 (E.D. Cal. March 30, 2010).
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