Have I mentioned lately how I love it when readers submit topics to cover on eDiscovery Today? One reader (and good friend) Kevin Clark, Litigation Support Manager at Thompson & Knight LLP, submitted two terrific topics that I not only thought would be great to cover on the blog, I also decided to bring in a well-known expert (Craig Ball) to weigh in on both of them.
I’ll cover the first one (embedded graphics in emails) today and the second one (links to files in emails) in a few days.
My question to Craig regarding embedded graphics in emails was as follows:
More and more, we’re seeing unrendered graphics in emails as many enterprise email systems don’t automatically download graphics from certain email addresses or domains unless directed to by the recipient for security reasons. If the recipient of the email never chooses to download graphics in an email (meaning they never saw them), do they still need to be produced as part of an email?
Craig’s response:
In discovery, parties are only obliged to produce information in their care, custody or subject to their control. No one can be expected to produce what they don’t have and cannot reasonably obtain as a matter of right or custom. So, if it can truly be established that neither the users nor the enterprise had or saw the images, then it’s not reasonable to expect them to seek out and produce embedded graphics that weren’t downloaded by the user or the enterprise.
Simple question, simple answer; but, there’s the rub: The hypothetical strikes me as wishful thinking. Users can and do download and view embedded graphics, so how does a litigant assert something “never” occurs when a reasonable inquiry would contradict the claim?
I’m skeptical of claims that custodians never look at inline images in communications deemed relevant and responsive. Just because the mail server didn’t download the embedded graphic doesn’t mean the user didn’t do so locally. So, if the images are more than simply decorative “noise” like a logo in a mail signature line, I’d want the producing party to do more than baldly claim that no one ever saw the images. I’d want to test the assumption and assure myself that that I can demonstrate that users could not view the images without those images also being present in the mail collected and processed for production.
If the picture data would be found in a local PST or OST (mail storage formats I still run into with regularity), then the producing party cannot falsely claim the images weren’t seen because they’d rather not deal with them. Competent lawyers don’t just hope, they check.
It’s an important issue considering our growing reliance on images to communicate substantive ideas. As a requesting party, I don’t care about a signature logo, but I care very much if gifs or emoji takes the place of the written word. A thumbs up icon is agreement; a raised middle finger emoji is…well…not. Considering the near-universal adoption of inline images, I’d want my clients to work toward producing image data and not waste resources trying to sell the lie that no one looks at images.
Thanks to Craig for that response and thanks to Kevin for the topic suggestion. Craig weighs in on links to files in emails in a second part in the next few days.
So, what do you think? Do you agree with Craig on considerations for embedded graphics in emails? 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 my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.