I generally do not write about recent cases because they tend not to provide guidance to the practitioner. Typically, attorneys ask me practical questions: what to seek or produce in an e-discovery matter, what is the best way to preserve data or design and implement a file retention policy, and so on. Even with the December 2006 e-discovery changes to the Federal Rules of Civil Procedure, the recently published The Sedona Principles (2d ed.) and recent opinions, guidance is still very hard to find and. For the reasons discussed below, this will always be.
The recent opinion in Best Buy Stores L.P. v. Developers Diversified Realty Corp., 2007 U.S. Dist. LEXIS 88771 (D. Minn. Nov. 29, 2007), illustrates the problem of finding guidance in e-discovery case law. On September 20, 2005, plaintiff Best Buy filed suit against sixteen of its landlords and their property manager; it amended its complaint on April 11, 2006. Prior to filing suit, Best Buy was involved in the matter of Odom v. Microsoft Corp. and had prepared a searchable database in which its e-discovery for that matter was housed (the “Odom database”).
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