Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers

Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004)

Defendant sought sanctions when evidence showed that two key witnesses (principals of plaintiff, Maass and Chutijian) systematically deleted potentially relevant emails before and during litigation. Specifically, defendant sought an order (1) precluding plaintiff from presenting certain evidence and calling certain witnesses at trial and (2) requiring the two witnesses to execute consents authorizing Yahoo, Inc. and Microsoft Corporation to release to defendant all e-mails sent from or to Maass or Chutjian since June 30, 2000; all e-mails sent between Maass and Chutjian at any time (including as “cc’s”); and all e-mails between Maass or Chutjian any of eight specified e-mail addresses.

Magistrate Dolinger deferred decision on sanctions and ordered the two witnesses to consent to production of pertinent e-mails still available through their e-mail service companies in order to determine, to the extent possible, the degree of prejudice defendant suffered by virtue of the deletions. The judge ordered the witnesses to execute the consent forms and ruled that the emails should first be provided to plaintiff’s counsel so that he could screen them for any privileges. Plaintiff’s counsel was directed to notify defendants when he received the emails, and to provide copies to the defendants within 72 hours of such receipt, and prepare a privilege log as to any withheld emails within same timeframe.