The “Part and Parcel” Principle

Many thanks to Doug Austin for Responsive Nonprivileged Documents Attached to a Privileged Communication Must Be Produced (Jan. 23, 2025), discussing In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025).  The decision is available on Kelly Twigger’s eDiscovery Assistant.

Doug’s excellent blog points out that the court held that non-privileged “children” of a privileged “parent” must be produced; however, they need not be produced with the parent. Doug explains that the opinion states:

The Court concludes that when (1) a nonprivileged document (2) is responsive to Plaintiffs’ document request and (3) is attached to a privileged communication, the document must be produced to Plaintiffs (without the privileged communication), even if the only location where the document is found in Defendants’ possession is as an attachment to the privileged communication…

Interestingly, the Bard court cited a 2016 precedent,  In re: Bard IVC Filters Prods. Liab. Litig., No. MDL 15-2641 PHX DGC, 2016 WL 3970338, at *9 (D. Ariz. July 25, 2016) (requiring production of nonprivileged portions of documents attached to privileged communication).

In the recent Bard decision, the court wrote that defense counsel generally agreed with the need to produce separately.  However, “ Defense counsel argued that further review of the withheld attachments is not warranted because when Defendants, as a result of conferrals with Plaintiffs, checked 39 of such attachments, it found that all 39 had been produced to Plaintiffs elsewhere. Defense counsel argued that this sample set shows that nonprivileged documents have not been withheld from production.”

The Bard court did not agree:

The Court cannot conclude that a sample set of 39 is sufficient assurance that some responsive documents have not been withheld. As a result, Defendants’ will be required to review all documents attached to privileged communications to determine if they are responsive, nonprivileged, and have not been produced elsewhere to Plaintiffs.[

In footnote 2, the court also made it clear that, if an attachment is independently privileged, it may be withheld.

The parent-child issue arises frequently in the context of privileged emails with attachments.  “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But….  (Aug. 8, 2024).   It has been called the “part and parcel principle.”  Id.  That phrase comes from Jared S. Sunshine, “The Part & Parcel Principle: Applying the Attorney-Client Privilege to Email Attachments,” 8 J. Marshall L.J. 47, 54–55 (2014).

As noted in the blog, in Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court cited  Upjohn Co. v. United States, 449 U.S. 383 (1981), and wrote that “[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.”  [emphasis added].

Linet noted a split of authority and wrote that the better rule is that the sender need not produce what was attached to a privileged email; however, if the attachment is not privileged and responsive, it must independently be produced.  Linet concluded that, if the act of attachment is disclosed, the recipient may “reverse engineer” the contents of an otherwise-privileged email.

I suggest that it is pretty clear that the non-privileged child need not be produced with the privileged parent.  A producing party’s argument is, in my words:   “You can’t see what I sent to counsel, but if it isn’t privileged and it is responsive, you can see it independently.” The Sedona Conference Commentary is discussed in my blog.

I think that the problem often arises in connection with the settings on a litigation review platform.

If the platform is set up to code all near-duplicates in the same way, marking a child of a privileged email as privileged will also mark all independent copies as privileged, resulting in a failure to produce the independent, nonprivileged copy.  To the same effect, changing the code on the independent copies to nonprivileged will also change it on the attachments to the privileged email, likely triggering a warning of inconsistent coding when a production is run.[1]

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[1] The Bard decision is available on Kelly Twigger’s eDiscovery Assistant site, but not yet on Westlaw.