Cunningham v. Standard Fire Insurance Co., Case No. 07-02538 (D. Col. July 1, 2008)

This is an unusual one. The plaintiff here submitted a homeowner’s insurance claim to defendants and later filed this claim, presumably unhappy with the defendants’ treatment of his claim, for breach of contract and bad faith in adjusting his claim. This opinion arises out of a motion for a protective order to prevent plaintiff from inquiring into various topics during defendant’s Rule 30(b)(6) deposition. Of particular interest is Magistrate Judge Kristen L. Mix’s treatment of the e-discovery issues.

Plaintiff was unhappy with the number of emails produced in response to his requests. So he sought to inquire of defendant the details of its storage, preservation and backup of emails relating to claims authored or received by certain of defendants’ adjusters as well as any other adjuster who handled his claim. Defendants objected on the basis of relevancy – the information sought is irrelevant to whether defendants breached plaintiff’s insurance policy or acted in bad faith while adjusting his claim. Defendants stated that they have produced all email and plaintiff has not identified any emails that are missing. The court agreed with defendants that plaintiff has not met his burden of establishing the relevancy of this information, and entered the protective order.

The amended Federal Rules of Civil Procedure require that the parties discuss “any issues about preserving discoverable information.” In addition, the Discovery Plan must include “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.” The Advisory Committee Notes spell out that:

The amendment to Rule 16(b) is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26(f) is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. Form 35 is amended to call for a report to the court about the results of this discussion. In many instances, the court’s involvement early in the litigation will help avoid difficulties that might otherwise arise.

Notes to Amended Rule 16.

I won’t belabor this, but it is difficult for me to understand how the court could have reached this result. It seems to me that the storage, preservation and backup of emails are relevant as a matter of law.