When Personal Emails Become Discoverable

Parties who have been through discovery know that litigants often hotly dispute the bounds of what is discoverable. Many parties are extremely sensitive about discovery veering into areas that may lead to the collection of personal information from their employees, opening up the possibility that any of that information, such as personal emails, may be produced. 

Still, personal emails are certainly discoverable under the Federal Rules of Civil Procedure. Specifically, personal emails would be considered “electronically stored information” under FRCP 34(a)(1)(A) and discoverable so long as they meet the relevance and proportionality requirements of FRCP 26(b).

Although discovery demands targeting personal accounts or devices are easy to bat away when they are obviously irrelevant or made for an improper purpose, they can also provide powerful leverage to a demanding party who has good reason to believe relevant evidence exists in such locations.

The significance of this issue is only exacerbated by the recent proliferation of work-from-home orders caused by the Covid-19 pandemic, which has merged work and home environments, and blurred the lines between personal and business matters on an unprecedented scale.

The private nature of personal emails in and of itself increases the burden on a party seeking discovery to show that a discovery request is reasonable—that is, their need for relevant evidence outweighs privacy concerns and logistical hurdles. The FRCP's guidance on how to strike the balance between privacy, burden, and relevance concerning discovery of employees’ personal email accounts is limited.

A recent federal court decision in Texas in Ultravision Technologies, LLC v. Govision, LLC, provides insight into when personal emails or devices become discoverable.

Read the full article here.