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Court Grants Protective Order and Prevents Plaintiff from Inquiring About “Storage, Preservation and Backup of Emails” in Defendants’ Rule 30(b)(6) Depositions

Posted in CASE SUMMARIES

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008)

In this case arising out of a homeowner’s insurance claim, defendants sought a protective order to prevent plaintiff from inquiring into various topics during defendants’ Rule 30(b)(6) depositions.  One topic was to be:  “Knowledge concerning the storage, preservation and backup of emails relating to claims authored or received by Susan Yeckley, Gilbert Friedmann and Alice Barron as well as any other adjusters who handled Plaintiff’s claims.”

Defendants argued that the information sought in this topic was irrelevant to whether defendants breached plaintiff’s insurance policy or acted in bad faith while adjusting his claim.  Defendants further stated that, to their knowledge, "all emails between Plaintiff and [Defendants] have been disclosed.”

Plaintiff countered that he had requested all emails relating to his claim, but that the resulting number of documents he received was "small."  Plaintiff stated that he "communicated with [Defendants] via email from the beginning of this claim,” and it appeared to the court that he was arguing that the small number of emails produced might indicate that the defendants had lost emails or information relating to his claim.  However, the court noted that plaintiff could not reference, and had not referenced, any specific email that he believed was missing.

Thus, the court agreed that the "storage, preservation and backup of emails" was not relevant to whether defendants breached plaintiff’s insurance policy or acted in bad faith in adjusting his claim.  Concluding that plaintiff had not met his burden of establishing the relevancy of this information or that the request was not redundant, the court granted defendants’ motion for a protective order as to this topic.

Another topic at issue was described as:  “Knowledge of efforts undertaken by Defendants, and each of them, to produce documents requested by Plaintiffs in Plaintiff’s Request for Production of Documents.  When responding to this matter, exclude all attorney-client information.”  Notwithstanding the qualifier, defendants argued that that the topic invaded the attorney-client privilege.

The court observed that the Tenth Circuit has disapproved the use of a blanket assertion of privilege, holding:  “A general refusal to cooperate [in discovery] is not enough. [A lawyer asserting a privilege] must normally raise the privilege as to each record sought and each question asked so that … the court can rule with specificity.”

Since no questions had yet been asked at any deposition, the court denied the motion as to this topic to the extent it sought a “blanket” protective order based on the attorney client privilege.