• December 3, 2008

In re Zurn Products Litigation, MDL No. 08-1958 (ADM/RLE) (U.S. District Court, D. Minn.)

Plaintiffs in this multidistrict litigation being handled in Minnesota claim that defendant’s brass plumbing fittings were defective. Defendant’s General Counsel, back in 2004, “counseled [Defendant] that the increased frequency of warranty claims…was creating an identifiable risk of litigation…” The first of the cases that are part of the MDL (multi-district litigation) was brought in 2007. How far back should Defendant have started preserving documents? Answer: 2004. But did Defendant do so? And is Plaintiff allowed to take discovery to find out?

Plaintiff sought discovery; Defendant resisted, arguing that Plaintiff had no reason to suspect spoliation. (By the same token, Defendant had no reason to resist discovery? (Assuming plaintiffs will foot the bill, that is.)) The Court sided with the Plaintiff.

Also in discovery, Plaintiff identified an email from a third party saying that Defendant, with its allegedly defective brass fittings, was playing “Russian Roulette,” among other damaging statements. Defendant refused to identify the third party, saying the third party warranty claimant did not wish to be identified. Defendant also argued that a prior court order prohibited Plaintiffs from obtaining the names of warranty claimants. The Court pointed out, however, that the prior order concerned an effort to obtain “all warranty claimant names” not a single one who had authored something along the lines of a “smoking gun” email. Again the Court sided with Plaintiff.

Moral of the Story: E-discovery-related vendors and e-discovery-focused lawyers portray a world where e-discovery and associated risks are ubiquitous and huge threats. Some litigators and clients view these warnings as excessive, overstated, and self-interested. The reality, as usual, lies somewhere in between.

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