Meet and Confer with Kelly Twigger
Meet and Confer is the podcast for litigators, eDiscovery professionals, and anyone who knows that in a world of electronically stored information, discovery strategy isn’t optional—it’s essential. Hosted by attorney and discovery strategist Kelly Twigger, each episode offers clear, practical discussions on how to effectively leverage the power of ESI to craft successful discovery strategies for any type of litigation. Topics include, navigating evolving rules, understanding emerging case law, and making the strategic decisions that shape the outcome of a case. Whether you're a seasoned litigator, brand new associate, in-house counsel, or law student, Meet and Confer helps you think critically, stay prepared, and master your discovery strategy for modern litigation.
Meet and Confer with Kelly Twigger
The "Lesser-Included" Email Debate: What Does Rule 34 Really Require for Production?
What if the most important part of your email evidence is the message you didn’t receive? We dig into a timely antitrust class action centered on formulary placement for a multiple sclerosis drug and unpack a pivotal ruling on whether parties must produce non-inclusive emails within threads. The debate sounds technical—threading, metadata fields, inclusive versus non-inclusive—but the stakes are practical: searchability, fairness, and how close your evidence is to the way it’s ordinarily maintained.
We walk through the competing proposals: defendants sought to produce only the most inclusive emails with a supplemental metadata field, while plaintiffs pressed for every message and its native metadata to support real-world workflows like custodian-based searches, timeline building, and deposition prep. Judge Young Kim’s analysis becomes a roadmap for litigators: Rule 34 favors production as ordinarily maintained; usability is not satisfied by bolted-on fields; and proportionality demands concrete numbers, not speculative claims about hosting costs and review time. The court ultimately sides with plaintiffs—“barely”—and explains exactly what evidence could have changed the calculus.
Beyond the holding, we turn lessons into tactics. Threading can speed review and harmonize coding decisions, but it doesn’t justify depriving the other side of earlier messages or native metadata. Most platforms allow you to thread for review while still producing each email in a thread as a separate document with full fields intact. If you argue burden, bring data: gigabytes, rates, hours, throughput, and quality impacts tied to the actual collection. If you argue need, show how missing non-inclusive emails break custodian filters, analytics, and privilege accuracy. Antitrust matters may lean toward broader discovery, but the core principle travels: both sides deserve the same usable information.
Subscribe for weekly, practical ESI case breakdowns, share this episode with a colleague who wrangles email evidence, and leave a quick review to help others find the show. Your feedback fuels the next deep dive.
Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.
Hi, and welcome to our case of the week segment of the Meet and Confer podcast. My name is Kelly Twigger. I am this principal at ESI Attorneys, a boutique law firm for e-discovery and information law, as well as the CEO and founder of Minerva 26, where we take the insights from our practice and provide a discovery strategy tool to help litigators understand and leverage the power of ESI as evidence. Our case of the week segment is brought to you by Minerva 26 in partnership with ACEDS. If you're new to the podcast, each week I choose a recent decisions on e-discovery issues and highlight the practical considerations for counsel to apply in their practice and for other legal professionals to know and understand. If you love the podcast, I'd love it if you would share it with your colleagues and friends. Expanding our reach allows us to continue providing knowledge-based content for you each week. Shout out this week to Christian Lee and to Bill Hamilton, who both recommended our decision for this week's episode. Our case this week comes to us from a class action titled Inray Tech Federa, Antitrust Litigation, in which United States Magistrate Judge Kim Judge Young Kim, excuse me, weighs in on whether a receiving party is entitled to the non-inclusive emails in an email thread. You've heard me refer to them as lesser included emails, and we'll get into that. This decision is important because it identifies a key analysis point in the production of email. And that's critical because email is still the most voluminous source of ESI in Discovery. As always, we'll include the link to the decision and other materials mentioned in the show notes. All right, let's dive in. As I mentioned, this decision comes to us uh from September 25th, 2025, in the NRA Tech Federa antitrust litigation. I hope I'm pronouncing that correctly, not really sure. This is a decision from United States Magistrate Judge Young Kim in the Northern District of Illinois. As always, we issue tag each of the decisions in our Minerva 26 database. And this week's issues include ESI protocol, email threading, privilege log, metadata, and proportionality. All right, let's dive into the facts of the case. Now, the underlying case that's happening here, I mentioned it's a class action. The class action involves antitrust and RICO claims related to defendant biogen's alleged scheme to limit competition using unlawful kickbacks to pharmacy benefit managers in exchange for placement of its multiple sclerosis medication, Tech Federa. That places Tech Federa above generic equivalents on the formularies for drug companies. If you don't know, as I didn't, what a drug formulary is, um, according to the United Healthcare website, which is my insurance company, a formulary is just another name for a drug list. A formulary is the list of generic and name brand prescription drugs covered by a specific health insurance plan. Sometimes health plan formularies are also referred to as preferred drug lists. The purpose of a drug formulary is to help manage which drug drugs care providers can prescribe and that would be covered by a health plan in 2025. The goal of a medical formulary is to make sure that the drugs covered by a health plan are safe, effective, and available at a reasonable cost. Health plan formularies are typically created by a committee set up by the plan's health insurance company. The formulary committee would likely include pharmacists and doctors from various medical areas. This committee would then choose which prescription judge drugs to include on the health plan formulary. A health plan may change its formulary drug list from time to time, and that may be because new drugs become available, changes in treatment, or based on new medical information. So importance here is that Tech Federa, essentially, I'm going to guess its patent had expired. So there were generic versions of the drug available. And the pharmaceutical company wanted Tech Federa to be listed higher than the generics on the drug plan formulary and thus get recommended more, prescribed more. So better for income, right? All right. So that's what we're involved here in the background of this case. That's what we're fighting about, and that's what we're doing discovery on. Now, procedurally, in this class action, this decision is before the court on cross motions from the parties regarding the entry of an ESI protocol. Now the court stayed discovery for both parties based on anticipating a motion to dismiss from the defendant, but allowed the parties to exchange both initial disclosures under Rule 26 and to negotiate an ESI protocol for the balance of the case. The parties agreed on all the issues for the ESI protocol except for one related to email threading. In essence, the defendant wants to exclude what I refer to as the lesser included emails in a thread in production, but provide metadata for those emails. So no text, but metadata for those lesser included emails. The plaintiff objects, claiming that failing to produce those lesser included emails gives them a less than full production and limits their ability to search for those lesser included emails. All right, for those of you not familiar with what email threading is, I covered this in detail on episode 66 of our case of the week in the in-rate actos payer litigation, another antitrust case. If you're a Minerva 26 user, you have access to that episode in the case of the week module in our academy, so you can go check that out. For those of you that don't have access, let me explain it a little bit. Email threading is a technology within a review platform. There are dozens. Lexby, disco, relativity, uh, reveal, everlaw, that eliminate the need for a reviewer to continuously review the same messages over and over again. So think about the fact that if you've done review, because emails get put in a thread when one person responds or forwards an earlier email, a production may include several to dozens of the same email over and over again. And with human reviewers, you can end up with different review decisions applied to the same email in different threads. The technology of email threading allows you to open a window and take, identify all of the emails that are that are the same textually and pull them together to be reviewed by one person at a time. That eliminates you having multiple reviewers seeing messages from the same thread and perhaps coding them differently. It also allows you to apply a redaction to an email at one time that can then be populated across that same email. Again, the tool is text-based, text-based. That's really key here because what the defendants are trying to argue here is that the plaintiffs shouldn't get the text of those lesser-included emails. The issue becomes when you produce emails that are part of an email thread, and generally the receiving party wants to receive each individual email as a separate document because they want to receive the associated metadata with the document to allow them to search and filter. If you've used a review platform, you know that when you have a thread, typically only the first or most inclusive email would be listed as the document, and then there may be 10 to 12 emails below that. Another approach is to produce each individual email in the thread. Now, imagine, for example, if you have an email thread that has 10 people on it and you're preparing for a deposition of John Doe, and John Doe is on two emails, but he's not on the other eight. Essentially, when you're doing that preparation, you want to have that metadata to have those emails be able to be segregated into individual documents as just the two that went to John Doe to be part of his deposition production. Whereas if you don't have the metadata from the lesser two emails and you only have the highest thread or the full text of those emails, if that thread doesn't list John Doe on it, or there's other metadata that would prevent it from being contained in a search for John Doe's materials, then whoever is prepping for the deposition will not have the ability to use that information. It won't come up in a search. Now, the federal rules of civil procedure provide that essentially both parties should have the same information. That's been a topic of discussion at the Sedona conference. And I've had that discussion multiple times here on the case of the week and also on panels that I've spoken on. Essentially, both parties should have access and are entitled to the same information. Now, I can go off on a tangent here and tell you that I think we should all be producing data natively, which would really give both sides the access to the information, but we're not quite there yet. All right, with that background on threading, let's turn to what Magistrate Judge Kim had to say on this issue. First, Judge Kim refers to the lesser-included emails as non-inclusive based on an article that he cites. I haven't heard that term before, but that's what the court uses, so that's how I'll refer to them for this case. What's great about this case and why I wanted to cover it today is the way that Judge Kim lays out his analysis. If you want to argue about email threading, Judge Kim's decision here and the N-Ray Actos payer litigation are two you'll want to include. He also cites to a host of other decisions that are relevant. He does, in fact, cite to the N-RAE Actos case, so that one will be included in the link to this week's decision. But what's most interesting is that in his analysis, Judge Kim is looking for case law in the Seventh Circuit where he sits that is precedential. He specifically says that. And frankly, we don't see a lot of that in e-discovery case law because no one jurisdiction has developed a full body of law on all of the issues raised by the discovery of ESI. Our legal landscape in e-discovery is constantly evolving. So we can't look just inside our jurisdiction the way that we can in other substantive areas of the law. The facts of each case are so critical to the analysis and discovery that looking at case law from across the country has become the norm. That's consistent here when Judge Kim says that, quote, from this court's perspective, there is no binding precedent in the Seventh Circuit regarding this issue. Second, the court notes that this is an antitrust matter and that courts tend to liberally construe the discovery rules in antitrust cases because direct evidence of antitrust claims is difficult to obtain. That may be important if you're trying to apply the principles of these cases to non-antitrust matters. So keep that in mind if you're arguing email threading that you need to think about the fact that both this case and the Enry Actos case are both antitrust litigation with that broader scope of discovery. Personally, I think the analysis is the same, even if you're talking about a run-of-the-mill breach of contract, because the issue is really whether the receiving party gets the full value of the information under Rule 34. So to me, it's not different, but you'll have to keep that in mind. The court then looked at a Northern District of Illinois decision in the N-RAE Multiplan Health, in which the parties made similar arguments and the court permitted threading in production against the plaintiff's arguments. So in the N-RAE multi-plan health case, another antitrust action, the court essentially dismissed plaintiffs' arguments that they wouldn't get what they needed to if production was threaded and allowed defendants to produce a threaded production. The plaintiffs argued, sorry, but Judge Kim found that the multi-plan decision was, quote, informative but not persuasive, because the court did not provide any insight as to its reasoning. Judge Kim then looked at the usability of the production if it did not include the non-inclusive emails. And that's a lot of negatives to manage mentally. So hopefully you're still with me. Plaintiff argued that the threaded emails, instead of individual emails maintained in the ordinary course of business, would impede their ability to leverage data visualization tools to search and filter data, and that therefore defendant's proposal failed to comply with Rule 34B. Defendant responded that its ESI protocol, quote, ensures information from non-inclusive emails is preserved, close quote, including all requested metadata, because it will split conversations into their own separate threads and produce attachments and information from non-inclusive emails, including the body of the inclusive emails and the supplemental metadata field. Defendant also argued that no content or metadata is altered through the process of threading, and therefore threading is consistent with Rule 34B. Now that's interesting because it seems to suggest that defendants are going to provide the text of the data because it says the body of the inclusive emails. But really, when the court looks at the analysis, that's not what the defendant's saying. They're saying they just want to provide the metadata of those lesser included emails. So those are the two arguments. Which way did the court go? Well, the court sided with the plaintiffs, and the court's ruling here is very instructive. So I'm going to read the whole thing to you. It's a little bit long, but I especially love where Judge Kim notes that the plaintiffs, quote, barely prevailed. Here it is. Despite defendants' assurances, the court sides with plaintiffs. First, plaintiffs have requested production of the emails as they are ordinarily maintained, which is the clearest default form of production set forth in Rule 34. But defendant proposes producing ESI in a form that deviates from the Rule 34 norm from plaintiff's request and without demonstrating that its proposed alternative is reasonably usable as required. This is insufficient to justify setting aside plaintiff's proposal, which indisputably complies with this rule. Indeed, while defendant argues that email threading does not alter content or metadata, the fact that defendant must program an additional field to capture the metadata at issue supports plaintiff's argument that withholding non-inclusive emails results in a loss of metadata. The fact that the metadata plaintiffs seek can be provided in an additional field does not make it equivalent in terms of searchability and usability. Furthermore, unlike the multi-plan plaintiffs, here plaintiffs have articulated a specific need, I'll bet barely, for the lost metadata in its ordinary form. Defendant may be correct that text-based searches are a routine part of document review, but Rule 34B does not state that a party can refuse to produce ESI as ordinarily maintained merely because the producing party's alternative form is also used in discovery. Close quote. The court stated that that section of the rule does not require that a party seeking relevant discovery justify its request that ESI be produced in the form in which it is ordinarily maintained. Defendant also objected to the burden of reviewing and producing an unthreaded document set. And as such, the court then turned to the proportionality factors under Rule 26 B1. In support of its argument, the defendant submitted a declaration from its services provider that stated, stating that without email threading, the defendant will incur, quote, increased costs in hosting, review, and production. But the declaration lacked any numbers to substantiate that position, a fact that both the plaintiffs and the court latched onto. Defendant also failed to conduct any analysis of the six factors on proportionality that are set forth in Rule 26B1. Quote, beyond unspecified claims of substantial burden that the potential scope of discovery will exacerbate. Close quote. That's from the court. Now, if you follow the case of the week regularly, you know that failure to provide a factual basis for your arguments, any discovery, or to analyze those six factors on proportionality means your motion faces a very significant uphill battle. And by uphill, I'm talking about a mountain in Colorado. Now, here the court found that testimony that threading, quote, can materially reduce the number of documents for review, resulting in lower document hosting costs and quicker completion, close quote, lacked the sufficient specificity to assess the defendant's alleged burden. Basically, there were no facts, no numbers, no quantities, no time. Similarly, the court found that defendants' claimed that the lack of threading can result in higher hosting costs, did not have the required specificity and certainty. According to the court, quote, nonspecific or speculative claims are insufficient for the court to weigh defendants' burden against the remaining proportionality factors in Rule 26 B1, close quote. In sum, Judge Kim found that, quote, if given more evidence of a specific substantial burden defendant would incur, such as reasonable estimates of increased review time or financial projections reflecting significant increased hosting costs, the court may find defendant's burden outweighs the benefit plaintiffs expect from the availability of additional metadata. And a more detailed argument regarding the importance of the metadata in resolving the issues, given the existence of other tools to increase searchability, might change the calculus of a proportionality analysis. But as it stands now, defendant fails to meet its burden to show that his objection, to show its objection on the grounds of proportionality. With that, the court granted the plaintiff's motion and denied the defendant's motion. So, in essence, the plaintiffs win and they will be enabled to retain all of the data in terms of lesser-included emails that would be included in the production. That was pretty unarticulately stated. All right, what are our takeaways from this case? Well, here's what I don't understand about why this motion is even being argued. Generally, and I certainly cannot speak for every review platform out there, and I don't know which one the defendants were using here. But generally, a system that allows for email threading in review also allows for the production of that data set to be made to include all lesser included or non-inclusive emails, whatever you want to call them. Which means that the defendant here can use email threading to minimize its review cost, which incidentally is the purpose of email threading technology, and still provide plaintiffs with a complete production that allows them to search and filter the full collection. So, in essence, the technology allows for plaintiffs to meet their obligations and or to for defendants to meet their obligations under rule 34 and for plaintiffs to be able to receive the full collection under both 34 and 26. Now, by trying to keep the plaintiffs from getting the same data that defendant has here, the defendant was in clear violation of Rule 34B, and that's what the court found. I'll bet barely, according to the court. Where the what the parties really should have done here is to agree that the defendant could have used email threading for review to create consistency in decisions and reduce review time and agree to produce all lesser included emails and their metadata to plaintiff. These systems allow for that. Although I have to tell you, from a practical perspective, I'm not really convinced that email threading reduces your review time because of the complexity of opening that window and making those decisions on threads. However, it does reduce the potential for having different decisions now on us on the same document. Now, as we move forward with AI, Cal technologies that are in essence doing a first round of review, we might start to do this analysis a little bit differently. Now, I completely concede that I am Monday morning quarterbacking here on the case of the week. But I will also say that I find more often than not that most of these very costly motions don't have to happen if the litigators really understand how these tools work and they're talking to their teams. It makes no sense for the defendant here to say that email threading reduces hosting costs. It doesn't. You still have the same amount of data, you're just leveraging technology to review it in a more effective manner to ensure consistency in decisions. Any additional data that they would have would be text-based and extremely minimal in terms of quantity, meaning, and that's how hosting costs are calculated. So I'm not surprised that the defendants didn't have the numbers here to be able to articulate to the court in the declaration. Now, motions like this make me wonder what both sides were doing. Other protocols that are out there, and plenty of them are in Minerva 26, have included specific language that allows the producing party to leverage email threading and still produce the full collection to comport with Rule 34B. Now, finally, I mentioned this in the analysis, but I'll say it again. If you are not putting facts to support your arguments on discovery motions, you will lose. If your facts include costs, that means you have to show numbers and they have to be real. They have to be based on fact, calculations from your actual data set. The same thing is true on proportionality. There are six factors under Rule 26 B1, and you have to analyze all six of them for the court in order to succeed on a proportionality argument. Defendant did not do that here. Now there's no question that the discovery of ESI is much more complicated than paper discovery ever was. But there is also no question that the case law and the rules tell you exactly what you need to do. Use them to your advantage because the party that understands how to play the game wins. That's our case of the week for this week. Be sure to follow the Meet and Confer podcast on your favorite podcast platform. And if you're interested in seeing how Minerva 26 can help you engage in better discovery strategy, visit us at Minerva26.com. Thanks and have a great week.
