The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge
This case has been referred to me for the resolution of discovery disputes. The issues now before the Court are (1) whether plaintiff Covad Communications Company ("Covad") should be permitted to conduct a forensic search of defendant Revonet, Inc.'s ("Revonet") computers and servers; (2) how those searches should be conducted; and (3) who should pay for them.
The history of this case appears in previous opinions. See generally Covad Communications Co. v. Revonet, 254 F.R.D. 147 (D.D.C. 2008); Covad Communications Co. v. Revonet, 250 F.R.D. 14 (D.D.C. 2008). Briefly, Covad hired Revonet to run a marketing campaign for Covad's voice over Internet protocol ("VoIP") business. As part of the campaign, Revonet made outbound phone calls to find persons who might be interested in Covad's services and also fielded calls from persons who were seeking information about Covad. These practices were known as generating outbound and inbound leads, respectively. Covad now alleges that Revonet expropriated information that belonged to Covad in violation of the contract between the parties.
As further discussed in the findings of fact, Revonet used a database called the Federated Database to house all of its sales lead information regardless of the source. Covad has alleged that Revonet took sales lead data -- stored in the Federated Database -- that belonged to Covad and gave it to other customers. Understandably, there is no dispute that the content of the Federated Database and the evidence within that database itself and elsewhere are the very heart of this lawsuit. Thus, I have expressed my view, and the parties have agreed, that the database itself, and not just the data that it holds, should be considered an exhibit in this case and the parties must find a way to examine it so that they can make the appropriate arguments and try this case. Cf. Smith v. Café Asia, 246 F.R.D. 19, 21 (D.D.C. 2007).
The parties first brought the issue of the database to the Court's attention in December 2008, when their attempts to reach an agreement as to how to search it failed. At that time, I ordered the parties to file proposed protocols for searching the Federated Database. See Minute Order (12/3/09). The parties filed their protocols on December 12, 2009, but unfortunately each proposal was based on a number of untested factual assumptions about Revonet's computer systems. Accordingly, I set the matter for an evidentiary hearing for the purpose of resolving those factual disputes. See Memorandum Order (1/13/09) [#67]. The hearing took place on three days: March 4, 2009, March 24, 2009, and April 15, 2009.
At the hearing, Revonet presented Fred Purdue, who was qualified as an expert in Information Technology and SQL databases. Purdue is a consultant who, though he did not inspect the servers themselves, spoke to a number of Information Technology ("IT") personnel at Revonet. Purdue testified about a number of server failures at Revonet in 2007 after this litigation was filed. He also opined that it would be risky to make a forensic copy of the servers because they are very old. Purdue then gave a cost estimate of $47,000 for copying and analyzing Revonet's drives, a figure that did not include legal expenses associated with the actual forensic examination. He did not discuss any individual computers, whether they exist, whether they should be imaged, or how much that might cost.
Next, Brice Anderson, a former salesperson who is now Director of Channel Sales Strategies at Revonet, testified. Anderson testified that Revonet tracked phone numbers that people used to call into Revonet's call centers to determine where callers found out about Covad. When calls came in to the call center, Revonet would input information about the caller into a program called RPM. There was no specific field to indicate that a call was an inbound lead, but Anderson testified that one could tell that from looking at the entry in RPM, though he did not explain how.
At some point around the time that Covad and Revonet stopped doing business, Revonet began the Gold campaign, in which it selected certain leads out of the Federated Database and copied them over into the Gold campaign. Anderson conducted a search and concluded that about 2,000 inbound Covad leads were assigned to the Gold campaign, and of that, about 25 of them were sold to other companies. Anderson also testified that in the summer of 2006, Revonet caused all leads from Covad that were designated as inbound leads to be hidden, so they do not appear to most Revonet employees in RPM.
Finally, Covad called Scott Ellis, a forensic computer analyst, to testify as an expert witness. Ellis contradicted Purdue's contention that it would be extremely time consuming and expensive to make forensic copies of the drives. Ellis also testified that the fact that Revonet used a web-based interface for their salespeople to access the Federated Database was important because computers that access the Internet make temporary Internet cache files, so he would want to look at those PCs. He would also want to look at the PCs of IT Specialists who were moving data around. Ellis ultimately gave a rough estimate of $25,000 for the forensic investigation.
During Ellis' testimony, Covad questioned him about some e-mails that indicate that leads may have been distributed by e-mail in addition to through the Gold Campaign. Covad's counsel indicated that only four external e-mails were produced by Revonet.
From that testimony, I make the following findings of fact:
1. Revonet has one database, the Federated Database, that contains all of its campaigns. Transcript of Proceedings (3/24/09) ("3/24/09 Tr.") 64:19-24.
2. Within the Federated Database, entries are assigned to different campaigns and identified as such. 3/24/09 Tr. 64:22-24. Entries are not specifically designated as "inbound" or "outbound" in the database, however. 3/24/09 Tr. 83:7-11.
3. The Covad campaign dealt with both "inbound" and "outbound" leads. 3/24/09 Tr. 52:24-53:3. Revonet purchased lists of contacts from outside sources and called those contacts to promote Covad's services. Those sources were designated as "outbound." 3/24/09 Tr. 53:5-54:9. Revonet also fielded inquiries about Covad from contacts who called in to Revonet. Those sources were designated as "inbound." 3/24/09 Tr. 55:1-16.
4. In 2006, Revonet created a new campaign called the "Gold Campaign." 3/24/09 Tr. 58:17-20. To populate the Gold Campaign, Revonet selected leads from other campaigns that it considered to be good leads. 3/24/09 Tr. 59:18-60:21. Criteria for inclusion into the Gold Campaign included past success for another client, such as Covad. 3/24/09 Tr. 60:9-13.
5. Approximately 14,000 leads were copied into the Gold Campaign. 3/24/09 Tr. 76:5-6. To create the campaign, Revonet IT personnel made complete copies of leads that already existed in other campaigns and placed the copies into the Gold Campaign. 3/24/09 Tr. 62:9-10. The only difference between the copies was that the field indicating which campaign the lead belonged to was changed to Gold. 3/24/09 Tr. 83:15-25. The entries were not moved. Instead, they were duplicated, so the original leads would still appear in the appropriate campaigns. Id.
6. For inbound leads, Revonet used phone numbers to determine what advertisement or mailer, or other source the caller was responding to. 3/24/09 Tr. 55:17-22.
7. The Gold Campaign leads were marketed in a program called Leads on Demand. 3/24/09 Tr. 63:23-64:9. Through Leads on Demand, Revonet offered five free leads taken from the items in the Gold Campaign to prospective customers. 3/24/09 Tr. 66:11-16. ...