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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Company Must Pay To Reproduce Email Messages With Attachments
Posted by Gregg Mayer on Tuesday, February 26th, 2008
In a contract dispute in New York, PSEG Power New York, Inc., disclosed thousands of email messages to Alberici Constructors, Inc., but a “technical glitch” caused problems with viewing the email attachments. For some reason, the attachments were divorced from the email messages and could not be matched up.
Alberici wanted to see those attachments and a question arose as to who would pay to reproduce the email messages with the attachments.
“Attempting to reunite these documents has been nothing short of a donnybrook for Alberici,” wrote the New York magistrate judge in an opinion last fall. “It has been frustrated if not completely hamstrung in locating these documents.”
Cost estimates to reproduce the email messages were all over the map: PSEG said it would cost more than $200,000; Alberici said it had a vendor that said it could do the work for $37,500. PSEG did not want to use Alberici’s vendor.
Ultimately, the judge said the costs to reproduce the email fell on PSEG:
We acknowledge that discovery production is rarely perfect or ideal, yet this discovery quagmire created by PSEG’s vendor falls woefully short of comporting with the spirit of Rule 34 [of the Federal Rules of Civil Procedure]…The long-held precept on discovery should not be lost on the parties: relevancy does not turn on admissibility at trial but rather whether the disclosed item is calculated to lead to discovery of admissible evidence, and in this case, these emails and their attachments may do just that. In the total scheme of things, re-production is warranted in this case.
The judge said PSEG could either reproduce the email messages with the attachments or go through the mass of hard copies and match them up. Either way, PSEG had to pay.
The case illustrates the importance of cost-effective archiving and retrieval on the front end to avoid costly problems during litigation.
The case is PSEG Power New York v. Alberici Constructors.
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