The sun was in my eyes. How about a do-over?

The e-discovery bar (i.e. all of us carefree minstrels who venture from town-to-town performing the morality play, "Facciamo Tenere Mani e Parlare di Sistemi" or "Let's Hold Hands and Speak of Systems") has suffered a setback in the form of an opinion that doesn't jibe with the transparent EDD model that serves as our bar's Kumbaya. 

Who among us isn't preaching that there should be disclosure of information pertaining to the storage, preservation and backup of e-mails?  I consider it de rigeur to identify one's e-mail system to the other side and share information about purge practices and backup.  So, imagine my chagrin when the judge in Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008), an insurance bad faith claim, barred inquiry into "the storage, preservation and backup of emails relating to...Plaintiff's claims."

The defendant sought a protective order seeking to prevent Plaintiff from posing questions about e-mail systems in a 30(b)(6) deposition.  The court granted it, stating that the "'storage, preservation and backup of emails' is not relevant to whether Defendants breached Plaintiff's insurance policy or acted in bad faith in adjusting his claim.  Plaintiff has not met his burden of establishing the relevancy of this information, or that this request is not redundant."

Mind you, the court noted plaintiff's assertion that he "communicated with [Defendants] via email from the beginning of this claim, yet there are almost no emails pertaining to his claim during the year 2006."

Certainly no one can take issue with the assertion that inquiry into e-mail systems is not directly relevant to the merits of the action.  It almost never is.  But, it's spot-on relevant to issues in discovery and is often essential to equip a litigant with information needed to meet key duties of good EDD practice--duties like narrowly targeted requests or designation of reasonably usable forms of production.  In the face of a claim that amounts to, "e-mail that should have been produced wasn't," it certainly seems relevant to issues of spoliation and incomplete discovery.

It's tough to be Solomon.  Sometimes the real mom says, "keep the baby" and justice is done.  But it's a lousy precedent. Later judges may cleave the kid and say, "Next case." 

The odd part is, I'm pretty confident the Court was right and reasonable and just that day, for those parties, on those facts.  I just wish we didn't have to live with the language employed as such a bad precedent.