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Covad Communications Co. v. Revonet

May 29, 2009


The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge


Now pending before the Court is Revonet's Motion to Compel Discovery ("MTC") [#44] and accompanying Memorandum in Support. The parties recently filed a joint stipulation [#89] in which Revonet withdrew some of its requests. It had been my hope that my resolution of other discovery issues in this case would obviate the need for judicial intervention in this instance -- particularly because Covad insisted it could not respond to many of these discovery requests until it obtained the documents that were the subject of its own Motion to Compel [#43]. I resolved Covad's Motion to Compel in December, see Memorandum Opinion [#65], but Covad still has not responded to most of the discovery requests at issue.

I. Background

Covad is a company that sells voice over internet protocol ("VoIP") services. In 2004, Covad hired Revonet to generate sales leads on Covad's behalf. The parties entered into a contract that forms the basis of the dispute in this case.

As part of its "Covad campaign," Revonet was involved in generating both inbound and outbound sales leads. Inbound leads began as inquiries that were fielded by Revonet from persons or companies who were interested in Covad services. Revonet would determine whether the caller was someone that Covad would be interested in pursuing. Revonet also generated outbound leads by calling people or companies and asking whether those entities would be interested in Covad services and whether those entities fit Covad's qualifying criteria. Revonet obtained sources for the outbound calls from commercial list providers such as Dunn & Bradstreet. All of these calls, inbound and outbound, were logged by sales associates into a database called the Federated Database.

In 2006, Revonet began a new campaign called the Gold campaign, which was an accumulation of all of the leads Revonet had found success with in the past, including some that were originally part of the Covad campaign. Covad and Revonet disagree about whether Revonet was permitted to do this under the contract between the parties. In addition to the dispute about the meaning of the contract, the parties quarrel about how much and what type of Covad data was used by Revonet in a manner that Covad argues is improper.

Discovery problems have plagued this lawsuit, with both parties hurling insults and accusations at each other. This controversy centers on Covad's responses to Revonet's written requests for discovery.

Revonet has propounded: (a) two sets of interrogatories, (b) three requests for production of documents, and (3) requests for admissions. It takes issue with Covad's response, or lack thereof, to each of these items. Revonet also asked that Covad provide contact information for deponents and indicate whether those deponents were still employed by Covad. Finally, Revonet seeks sanctions for Covad's alleged misconduct.

II. Analysis

A. Interrogatories

Federal Rule of Civil Procedure 33 provides that "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed. R. Civ. P. 33(b)(3). The answer must be "true, explicit, responsive, complete, and candid." Equal Rights Center v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (quoting Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996)); see also U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am., 235 F.R.D. 521, 524 (D.D.C. 2006) (merely restating allegations insufficient to respond to interrogatory). However, because the responding party has a continuing duty to supplement its answer, it is sufficient for a party to state that it is unable, at the time the answer is provided, to provide the information requested but will supplement its answers as information becomes available. Id. at 33. If an answer to an interrogatory is incomplete or evasive, the party seeking discovery may move to compel an answer. Fed. R. Civ. P. 37(a). The party seeking discovery has the burden of proving that the discovery response is inadequate. Equal Rights Center, 246 F.R.D. at 32.

Identification of Records

In its responses to Revonet's interrogatories, Covad repeatedly objects to Revonet's questions on the grounds that they "request[], in whole or in part, information that it is ascertainable from records in the possession of Defendant." E.g., MTC at 11. While Rule 33(d) does permit a party to produce or identify business records in lieu of a narrative answer to an interrogatory, that approach is inappropriate here for two reasons.

First, Covad is not answering the interrogatories by producing its own records and directing Revonet to search for the answer in them. It is referring Revonet to Revonet's internal files. This approach is not sanctioned by the Federal Rules of Civil Procedure. They only permit the responding party to answer an interrogatory by producing records from which the answer responsive to the interrogatory may be derived, provided the burden of ascertaining the answer is the same for both parties. See Advisory Committee Note to 1970 Amendment to Rule 33 ("This is a new subdivision . . . relating especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer. The subdivision gives the party an option to make the records available and place the burden of research on the party who seeks the information."); see also Pulliam v. Continental Cas. Co., No. 02-CV-370, 2003 WL 1085939, at *5-6 (D.D.C. Jan. 24, 2003) ("Under Rule 33(d), if an answer to an interrogatory may be found in the business records of the responding party and the burden of ascertaining the answer is substantially the same for the requesting party and responding party, then it is a sufficient answer to specify the records from which the answer may be derived . . .") (quoting Fed. R. Civ. P. 33(d)) (emphasis added).

Obviously, if Covad's approach was correct, propounding an interrogatory and getting an answer would become a perfect circle. If the responding party were permitted to say that the answer to the interrogatory is to be found in the producing party's records then the process of getting the information responsive to the inquiry would not move forward an inch.

Second, even if it were appropriate for Covad to answer the interrogatories by identifying Revonet's files, it would be required to specifically identify the documents that contain the answers. DL v. District of Columbia, 251 F.R.D. 38, 48 (D.D.C. 2008). Covad generally directs Revonet to its own records on the interrogatory's subject matter; it is not as though Covad is identifying specific documents or even categories of documents where the answer may be found.

Further, as I have noted before, interrogatories are not only an information gathering tool, but also an opportunity to require one's opponent to state its position on an issue in controversy in writing and under oath. See Melius v. Nat'l Indian Gaming Comm'n, No. 98-CV-2210, 2000 WL 1174994, at *1-2 (D.D.C. July 21, 2000). Revonet could certainly review its own files to look for information that supports Covad's claims, and I certainly hope it is taking that action, but it also has the right to hear from Covad what information Covad intends to use to support its claims. Thus the fact that Revonet has access to the underlying facts of the case does not mean that it does not have the right to see which facts Covad deems important, and how Covad intends to use those facts to prosecute this lawsuit.

Moreover, if Covad does not have any such information, Revonet is entitled to know that as well. Knowing that the responding party has no information about a particular contention prior to the responding party's production of the discovery demanded from her, establishes a fact that may be important, the very purpose of discovery. If the responding party evades the question by telling the producing party to look in her own records, there is another perfect circle. The question "what information do you now have in support of your claim?" is "answered" by the response that "you first tell me what information you have." While such squabbling has its place in the schoolyard, it hardly comports with the obligation imposed by Rule 26(g)(1)(a) that an attorney's signature on a discovery response be a certification that "with respect to a disclosure, it is complete and correct at the time it is made." Fed. R. Civ. P. 26(g)(1)(a).

Interrogatory Nos. 2-5

In Interrogatory Nos. 2-5, Revonet asks Covad for specific information regarding allegations in its complaint. Interrogatory No. 2 addresses Covad's contention that Revonet took inbound leads, integrated them into the Federated Database and shared them with third parties. No. 2 asks for:

a. the specific customer lead information Revonet took including the name, telephone number, address and other information obtained;

b. the date and manner in which the lead information was generated from Covad's advertising campaign;

c. the identity of the person who allegedly integrated the information into Revonet's Federated Database and the date thereof;

d. the specific Covad customer lead information allegedly shared with third parties, including the names, telephone numbers and addresses of the leads;

e. the date and manner in which the customer lead information was allegedly shared with third parties and to whom it was shared.

MTC at 10. Interrogatory No. 3 addresses Covad's contention that Revonet improperly usurped Covad's customer lead information and added Covad's proprietary VoIP leads to Revonet's database of VoIP leads. No. 3 asks for:

a. The specific customer lead information Revonet took including the name, telephone number and other information obtained;

b. the date and manner the customer lead information was generated and by whom it was generated;

c. the identity of the person who added the information into Revonet's Federated Database and the date thereof;

MTC at 13. Interrogatory No. 4 addresses Covad's contention that Revonet sold Covad's proprietary information to ...

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