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.

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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.