I’ll confess, I’m a threader. I have my mail program set so that when I respond to an e-mail, the previous posts become part of the new message. That way, after multiple exchanges with one person, I can keep just the most recent e-mail and delete all the earlier messages, leaving the entire thread intact in just one message.
But after spending several hours trying to sort through hundreds of pages of a client’s e-mails, many of them duplicate threads and digressions from threads and some replies to one person and some reply-alls, my e-mail practices may be ripe for a new years resolution.
It’s not just that the long and multiple threads are difficult to follow (especially with all those disclaimers in them). According to Magistrate Judge Susan Nelson (Minnesota Federal District Court), who spoke at a CLE in Minneapolis this past fall, long e-mail threads also create problems for parties trying to identify privileged documents in discovery. Often information in an e-mail that was intended to be privileged is missed during discovery and shows up in some other part of an e-mail thread, waiving the privilege as to that information. A federal district judge in Pennsylvania dealt with the same issue in November 2008 in Rhoads Industries v. Building Materials Corp.
So how can we better manage our threads? For starters, when you’re in an e-mail exchange with one person, delete the previous messages from your inbox, so there’s just one thread instead of several nearly identical ones. If any of the e-mails had attachments, save the attachment to a document folder; e-mail is a terrible place to store documents anyway. If you are one of several people to receive an e-mail and intend to leave out other people when you reply, change the subject line (“re:”) of the e-mail so that it will be clear that your e-mail is a branch of the original thread.
And if you feel you must write to the same group of people on an unrelated topic by hitting “reply to all,” change the subject line and delete all the prior posts that are unrelated to your new message.
Not all threading is bad — it’s difficult to track whether a client understood the legal analysis you provided by e-mail when they write back “got it” but your prior message has been deleted. But if we don’t start to do a better job managing our collection and storage of e-mail, we’re just looking for trouble down the road.