43. A review of the legal authorities suggests that the best practice is for parties to discuss the production and logging of e-mails and attachments as singular or separate items in advance of production and to reach agreement as to the treatment of e-mails and attachments for responsiveness and for privilege purposes. Regrettably, it does not appear from the Parties' Submissions that this was done in the present case.
44. That said, according to Defendants, the withholding of purportedly non-responsive attachments from the production of “parent” relevant e-mails is inconsistent with the Parties' past practice in this case—a point which Plaintiffs do not dispute.
45. Based upon Defendants' July 12 Submission, it does not appear that the issue of withheld or non-produced attachments is isolated to a handful of examples. Rather, the Special Master understands that Defendants have identified to Plaintiffs nearly 130 e-mails produced by SEI that did not include all of the corresponding attachments, and such “missing” attachments do not appear in SEI's privilege log.
*6 46. The Special Master also finds that Plaintiffs' statements regarding missing attachments fail to explain fully why a number of e-mail attachments are not included in SEI's production. In particular, it is unclear if the omissions are largely because e-mails were located and collected from repositories where they had already been disassociated from their attachments in the ordinary course (which may be a legitimate explanation), or if there was a concerted effort to review e-mails and attachments separately for the purpose of relevance determinations, and a determination to withhold from production attachments deemed not relevant.
47. Separately, the Special Master believes that Plaintiffs have misapprehended or misconstrued the Special Master's statements regarding the “relevant time period” in Draft Report and Recommendation No. 14. There, the Special Master did not intend to—and plainly did not—define the relevant time period in this case from January 1, 2004 through October 31, 2007.
49. Although Plaintiffs now contend that SEI has “consistently stated it would limit its production to” January 1, 2004 through October 31, 2007, on the same day it indicated the time period from which it would produce documents in response to Morgan Stanley's document requests (i.e.,
January 1, 2004 through October 31, 2007), SET also indicated it would produce documents from January 1, 2004 through June 30, 2009 in response to The McGraw–Hill Company's document requests, which include a request for “all documents concerning the Cheyne SIV.”
50. In light of the fact that, in response to some document requests, SEI agreed to produce documents through at least June 30, 2009, and the fact that, according to Defendants, more than 75% of SEI's produced e-mails are dated after October 31, 2007, the Special Master finds that Plaintiffs' suggestion that SEI's production of e-mails dated after October 31, 2007 was “inadvertent” due to the purported rush in which SEI was “forced” to produce documents is not persuasive when considering the potential preclusion of further discovery.
51. After reviewing the document requests served on SEI and the accompanying responses, including those in which SEI indicated that it would produce documents from January 1, 2004 through June 30, 2009, the Special Master finds that Defendants have met their burden of showing that the present motion to compel is not an attempt at a fishing expedition.
52. Indeed, the one example provided by Defendants regarding the Karl Dasher letter (apparently attached to SEI–E01418050–71, but not produced by SEI) suggests that there may be numerous relevant—and responsive—attachments to e-mails that SEI has not produced.
*7 53. The Special Master finds that it would be not only inefficient, but also patently unfair, to place the burden on Defendants to identify all of the e-mails that are missing attachments and to identify those e-mails to Plaintiffs for the purpose of further productions.
54. However, the Special Master further finds that simply requiring SEI to produce all non-privileged attachments that were not produced but were attached at some point in time to relevant e-mails that SEI has already produced may be inefficient, and its benefit may not be justified by the burden and expense to Plaintiffs.
55. Thus, in order to fully understand the nature and scope of missing e-mail attachments and to move forward with production, and in light of the unique relationship of attachments to e-mails that support an inference of contextual relevance—or where production of the attachments may be required for fairness or completeness, the Special Master believes that SEI should be required to:
a. Produce to Defendants those attachments to the 126 e-mails identified by Defendants in their May 17, 2011 Letter and their July 12, 2011 Submission in support of their current Motion; or
b. If SEI contends that such attachments cannot be located or produced without undue burden or expense, provide a detailed explanation regarding how the attachments were separated from the “parent” e-mails and/or why they cannot be located or produced without undue burden or expense.
56. The Special Master further finds that, if SEI has purposefully separated and withheld e-mail attachments on the grounds that such non-produced attachments (whether identified by Defendants or not) are not relevant, SEI should identify, by Doc-id/or “Bates number,” all such e-mail attachments withheld along with the identification of the parent e-mail if such information is readily available. SEI should provide such identification (by list or as otherwise agreed upon) to Defendants.
57. After production of the attachments to the 126 e-mails identified by Defendants (or provision of a detailed explanation as to why such attachments cannot be located or produced without undue burden or expense), Defendants may move for the production of additional e-mail attachments. Any such motion must be predicated on a demonstration that either (a) the newly-produced e-mail attachments were relevant and reveal that SEI's relevance determinations were erroneous as to the subset and thus should not trusted with respect to other withheld attachments; or (b) SEI's explanation for why such non-produced attachments to produced, relevant e-mails cannot be located without undue burden or cost is inadequate.
58. Prior to such motion being filed, the Special Master expects that the Parties will meet and confer regarding the possible resolution of any further requests for e-mail attachments through agreement rather than motion practice.
59. The Special Master further finds that the guidance in this Report and Recommendation must be applied equally to all Parties. As such, the Special Master will recommend that the Parties be directed to meet and confer within ten (10) days of the entry of the Order relating to this Report and Recommendation to address: (a) whether any Parties have been withholding attachments to e-mails from production on the basis of relevance determinations, (b) whether the Parties are separately identifying e-mails and attachments on privilege logs, (c) the format of the production or re-production of e-mails and attachments by SEI, and (d) the format in which SEI will provide any list e-mail attachments that were reviewed for relevance and were withheld from production on the ground that the attachment was not relevant.
*8 60. The Special Master further implores the Parties to consider reaching an agreement on these issues—whether consistent or inconsistent with this Report and Recommendation—that can provide certainty as to the treatment of these issues by all Parties and, by derivation, the Special Master and Court.