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Covad Communications Co. v. Revonet

August 25, 2009

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



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

MEMORANDUM OPINION

I. Introduction

This case has been referred to me for management of discovery. Discovery in this case has been most fractious, yielding several opinions*fn1 and orders and some of the latter have granted or denied sanctions.

In September, 2008, both parties to this litigation filed motions to compel responses to written discovery requests. I resolved Covad Communications Co.'s ("Covad") Motion to Compel [#43] on December 24, 2008. Covad Commc'ns Co. v. Revonet, Inc., 254 F.R.D. 147, 151 (D.D.C. 2008). Covad has now filed its Motion of Plaintiff Covad Communications Company to Compel Compliance with the Court's Order of December 24, 2008, and Applicable Law Requiring E-Discovery, and Statement of Points and Authorities in Support [#100] ("Motion").

II. The Parties' Contentions

Covad advances several arguments and some deal with the adequacy of Revonet's response to Covad's Request for Production of Documents and of its initial and subsequent e-mail searches. It also argues that Revonet has never even produced the documents specified in Revonet's initial disclosures. Covad's other arguments deal with the format of the information it has received and with a discrepancy between certain e-mails they have now received in native format and e-mails that were initially proffered in hard copy.

III. "Format" and "Completeness"

It is important to appreciate that the differences between the parties can be categorized as either ones of format or of completeness. "Format" speaks to the manner in which the information was produced, and the controversy focuses on the requirements of my December 24, 2008 Order as to the format of (1) the 35,000 pages Revonet proffered in hard copy prior to the Motion to Compel [#43] being filed; (2) the 2,832 pages of documents originally produced in hard copy while the Motion to Compel was pending; and (3) any other information that has been produced since my December 24, 2008 Order or will be produced in the future.

"Completeness" speaks to whether Revonet has produced, in whatever format, information that has been demanded by Covad.

IV. Recent Developments

In its Reply Memorandum of Covad in Support of Motion to Compel Revonet's Compliance with the Court's Order of December 24, 2008 [#109] ("Reply"), Covad argues that (1) only a subset of all the documents that should have been produced in response to the original 44 Requests to Produce Documents have been produced, (2) the e-mail search, no matter what it produced, was not designed to find the relevant e-mails because of the narrow and under-inclusive search terms that were used, (3) the litigation hold and search term documents have never been produced in electronic format, and (4) Revonet has not produced many of the documents identified in its own initial disclosures.

To the extent it dealt with the completeness of Revonet's responses to Covad's Request to Produce, the September 24, 2008 Motion has largely been overtaken by the May 27, 2009 Order that imposed a detailed forensic search of certain depositories of electronically stored information. See Covad Commc'ns Co. v. Revonet, Inc., - F.R.D. -, No. 06-CV-1892, 2009 WL 1472345 (D.D.C. May 27, 2009). I have recently ordered the parties to appear before me to discuss the expected submission of the report of the results of the search. Those results may cast an important light on whether it is appropriate to compel any additional information from Revonet as Covad demands. Moreover, those results will bear on whether the further compulsion of information, even if relevant, can be justified under the balancing of the factors identified in Rule 26(b)(2)(C) that include, of course, (i) whether the discovery is "unreasonably cumulative or duplicative," and (ii) whether the party seeking discovery "has had ample opportunity to obtain the information by discovery in the action." Fed. R. Civ. P. 26(b)(2)(C). Thus, I will not speak to the completeness of Revonet's production of information in response to Covad's Request for Production of Documents or its search for e-mails in this Opinion.

However, because these allegations were raised in a Reply Memorandum, the Local Rules did not permit Revonet to respond, and the allegations stand on the record unanswered. Letters attached to a subsequent filing indicate, however, that there have been significant subsequent productions by Revonet. See Letters of Carol Elder Bruce, Esq. to Andrew M. Klein, Esq. (June 11, 2009 & July 10, 2009), Exhs. B & C to Defendant Revonet Inc.'s Motion to Quash Subpoena [#118]. Given that discovery efforts appear to be ongoing, I will require Revonet to answer the following questions regarding some of Covad's allegations with the understanding that I will deem Revonet's answers to be certified pursuant to Rule 26(g)(1) of the Federal Rules of Civil Procedure:

1. Is it Revonet's position that its production to date satisfies all the demands made of it by Covad's ...


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