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Covad Communications Co. v. Revonet

December 24, 2008

COVAD COMMUNICATIONS COMPANY, PLAINTIFF,
v.
REVONET, INC., DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff Covad Communications Company ("Covad") brought this action against defendant Revonet, Inc. alleging that Revonet misappropriated and converted confidential, proprietary and trade secret information -- namely, sales leads generated by or for Covad -- and breached its contract with Revonet. This case was referred to me for management of discovery. Shortly thereafter, plaintiff filed its Motion of Covad Communications Company to Compel Responses to Requests for Production of Documents [#43] ("Pls. Mot.").

I. Background

Covad served its First Set of Requests for Production of Documents, Exhibit A to Pls. Mot. [#43-2] ("Doc. Req."), on April 27, 2007. Pls. Mot. at 2. Revonet responded on June 15, 2007 with a limited number of hard copy documents and represented that "[n]ot all documents have been obtained as Revonet has retained the assistance of an outside consultant to assist in collecting electronic documents . . . other responsive documents will be produced as soon as they become available." Id. (citing Exhibit B to Pls. Mot. [#43-3] at 1). Covad claims that Revonet has not produced any documents since that time. Id.

On August 4, 2008, Revonet advised Covad that it had additional responsive documents available for inspection and copying. Exhibit 2 to Revonet's Memorandum in Opposition to Plaintiff's Motion to Compel ("Defs. Opp.") [#46-2] at 2. Covad apparently never responded to that letter, but instead wrote to Revonet on August 18th and demanded that Revonet produce those documents by August 22nd. See Exhibit D to Pls. Mot. [#43-5] at 6; Exhibit C to Pls. Mot. [#43-4]. In an August 20, 2008 conference call, Revonet stated that it would make the 35,000 pages of e-mails that are responsive to Covad's request available in hard copy at Revonet's office for inspection and copying. Pls. Mot. at 4. Covad took issue with Revonet's offer to produce the documents in hard copy as hard copy is not the documents' native format. A few weeks later, on September 3, 2008, Revonet offered to make the e-mails available in electronic format as TIFF files, but only on condition that Covad agree to pay for the fees incurred by having one of Revonet's legal assistants delete privileged or otherwise non-responsive documents from the electronic production set. Exhibit D to Pls. Mot. at 6-7. Plaintiff objects to the form of defendant's production because printed pages (and TIFF files) are not the native format for e-mails. Pls. Mot. at 7-10.

Thus, Revonet insists that it be permitted to produce the e-mails in hard copy or as TIFF, provided Covad pays for the necessary deletions. In other words, Revonet will not produce the e-mails as they were originally created, i.e., in their "native format" as that important term is defined as follows by The Sedona Conference Glossary:

Native Format: Electronic documents have an associated file structure defined by the original creating application. This file structure is referred to as the "native format" of the document. Because viewing or searching documents in the native format may require the original application (for example, viewing a Microsoft Word document may require the Microsoft Word application), documents may be converted to a neutral format as part of the record acquisition or archive process. "Static" formats (often called "imaged formats"), such as TIFF or PDF, are designed to retain an image of the document as it would look viewed in the original creating application but do not allow metadata to be viewed or the document information to be manipulated. In the conversion to static format, the metadata can be processed, preserved and electronically associated with the static format file. However, with technology advancements, tools and applications are becoming increasingly available to allow viewing and searching of documents in their native format, while still preserving all metadata.

The Sedona Conf. Working Group of Elec. Doc. Retention & Prod., The Sedona Glossary: for E-Discovery & Digital Information Management (Conor Crowley & Sherry Harris eds., 2d ed., 2007) at 37, available at http://www.thesedonaconference. org/contentFiles/TSCGlossary_12_07.pdf. Instead, Revonet is claiming the right to convert the e-mails from their native format to other formats even though those are not as easily searchable by electronic means as the e-mails in their native format would be. The question presented is whether Revonet should be permitted to do so when that conversion's only justification is that Covad, according to Revonet, did not specify how the e-mails were to be produced.

II. Analysis

Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. Fed. R. Civ. P. 34(b)(1)(C), 34(b)(2)(E)(ii). Thus, as just explained, the parties' view of the preliminary inquiry here is whether Covad designated the form in which the documents should be produced.

Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. Fed. R. Civ. P. 26(f)(3)(C). This controversy predates that provision, and underscores its importance. See Aquilar v. Immigration and Customs Enforcement Div. of the U.S. Dep't of Homeland Sec., No. 07-CV-8224, 2008 WL 5062700, at *8-9 (S.D.N.Y. Nov. 21, 2008) (emphasizing the need for cooperation between counsel in defining the form of production) (citing The Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedona conference.org/dltForm?did=Cooperation_Proclamation.pdf). It does not appear that Covad and Revonet ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others' behavior: Covad expecting its documents in electronic form because Revonet hired a company to collect electronically stored information, and Revonet assuming that they should produce 35,000 pages of e-mails in hard copy because Covad produced its documents in that format. As there is no agreement, the parties invite me turn to to the language of the requests themselves to determine whether Revonet can produce the e-mails other than in their native format.

The instructions to Covad's document requests ask that Revonet "[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels." Doc. Req. at 3. "Documents" are defined as:

[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape ...


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