eDiscovery Daily Blog

When Reviewing and Producing Documents, Don’t Forget the “Mother and Child Reunion” – eDiscovery Best Practices

I love Paul Simon’s music.  One of my favorite songs of his is Mother and Child Reunion.  Of course, I’m such an eDiscovery nerd that every time I think of that song, I think of keeping email and attachment families together.  If you don’t remember the Mother and Child Reunion, you might provide an incomplete production to opposing counsel.

BTW, here’s a little known fact: Paul Simon took the title of the song Mother and Child Reunion from the name of a chicken-and-egg dish he noticed on a Chinese restaurant’s menu.

Like the rest of us, attorneys don’t like to feel shortchanged, especially in discovery.  While there are exceptions, in most cases these days when an email or attachment is deemed to be responsive, the receiving party expects to also receive any “family” members of the responsive file.  Attorneys like to have the complete family when reviewing the production from the other side, even if some of the individual files aren’t responsive themselves.  Receiving an email without its corresponding attachments or receiving some, but not all, of the attachments to an email tends to raise suspicions.  Most attorneys don’t want to give opposing counsel a reason to be suspicious of their production, so parties typically agree to produce the entire email “family” in these cases.  Here’s a scenario:

The case involves a dispute over negotiated gas rate agreements between energy companies and Federal Energy Regulatory Commission (FERC) approval of those rate agreements.  A supervisor at the company verbally requests a copy of a key contract from one of his employees, along with the latest FERC filings and the employee emails a copy of the contract and FERC filing summary attached to an email with the subject “Requested files” and the body stating “Here you go…” (or something to that effect).  A search for “negotiated w/2 (gas or rate or agreement)” retrieves the contract attachment, but not the email, which doesn’t really have any pertinent information on it, or the FERC filing summary.  Only part of the email “family” is responsive to the search.

If it’s important to produce all communications between parties at the company regarding negotiated gas agreements, this communication could be missed – unless your review protocol includes capturing the family members of responsive files and your review software provides an option to view the family members of responsive files and include them in search results.  I underlined “option” because there are still a few cases where parties agree to limit production to actual responsive files and not produce the families (though, in my recent experience, those cases are exceptions).

If your case isn’t one of the exceptions, make sure you have a well thought out protocol and robust software for including family members in your search results and in your document reviews for responsiveness, as well as automated and manual Quality Assurance (QA) and Quality Control (QC) checks to ensure your production contains complete family groups.

So, what came first, the chicken or the egg?  It doesn’t matter, as long as the family group is intact.  🙂

So, what do you think?  How do you handle family groups in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.