Saturday, December 27, 2008

2008-12-27 Affirming Aguilar, Court Calls for Competency and Collaboration

Case: Covad Communications Company, v. Revonet, Inc.
Citation: 06-cv-1892 (D.C.D.C. 2008)
Date: December 24, 2008
Topics: eDiscovery, Counsel Cooperation, Competency, Native Format Data, Reasonably Usable, Requester's Choice of Format; Cost Shifting


First, please note the changed format for case reporting. Where possible, I also include links to free access to decisions on-line. Any comments, critiques or suggestions are welcome.

This decision by Magistrate Judge John Facciola of the United States District Court for the District of Columbian, underscores the need for counsel to be competent in matters electronic. Discovery matters, to be precise. This decision also emphasizes the need for counsel to know what it is they request, and be able to articulate that request in such a manner that the Court can divine not only what is requested, but the form and format of production. Magistrate Judge Facciola first points out that the discovery dispute before the Court were served prior to the effective date of amended Fed. R. Civ. P. R 26, and then remarks that disputes like these were what the rules were amended to address.

The Court first notes that the parties never discussed ESI form and format of production:

"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

Issues relating to counsel competency (of both parties) never stray far from the Court's analysis:

"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."

Think drafting eDiscovery requests in the post-2006 Fed. R. Civ. P.amendment universe is a cut-and-paste operation? Think again.

"Thus, I am supposed to determine by examining ancient boilerplate - designed for discovery in a paper universe - such nice questions as whether an e-mail, existing in a computer's memory is a "tangible thing" and how e-mails are "maintained in the ordinary course of business." While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P.1.

"How inarticulate might be an eDiscovery request?

"Therefore, though Covad's instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them."

What happened here is that the discovery request asked for "tangible things.[see long list in opinion]."maintained in the ordinary course of business." The problem, as discussed by Magistrate Judge Facciola, is that "tangible"and ESI don't play well in the same sandbox (hence the Court's reference to "ancient boilerplate"). The problem presented here was what to do about production of 35,000 additional emails? The producing party wanted to produce in hard copy (think "tangible") and the requesting party, apparently newly sensitized to the world of eDiscovery, now demanded supplemental production in native data format.

Here, the requesting party's saving grace resulted from a combination of judicial practicality (or perhaps mercy) and reference to the actual wording of the request. The requesting party did not request native data format (but instead used the term "tangible thing" - the "ancient boilerplate").It did, however, request that production be made as kept in the "ordinary course of business." The Court points out that the likelihood that Covad kept its 35,000 email trove in paper format in the "ordinary course of business" was a bit more than highly unlikely:

"More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content.[Footnote omitted] Therefore, though Covad's instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that Revonet, in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that Revonet operates in this manner, and no suggestion that such a practice would be anything but incredible"

In ordering the supplemental production in native format, the Court took a practical and, imo, fair approach in resolving the issue, but not without some additional poignant observation:

"Therefore, even though I can't say I know what Covad has asked for, I can say what they have not asked for, and that is what they got. "

The subtext of this decision appears to be that while the Court might cut a break to requesting (or producing) parties in some instances, we are rapidly approaching a point where (1) WIAIWYG (what is asked is what you get), and WIRIWYP (what is requested is what you produce), and (2) we shouldn't expect the Courts to act as technology experts in interpreting either ESI discovery requests or responses.The Court also provides a short cost-shifting analysis and decides that no undue burden (justifying a cost-shift) are present in this instance:

"Revonet would have had to incur the cost of privilege review had it produced the e-mails in native format in the first place. That natural burden would not have been shifted because it is presumed that reviewing the data to ascertain whether any of it is privileged must be done by the producing party as a matter of course. Peskoff v. Faber, 251 F.R.D. 59, 61 (D.D.C. 2008) (costs of production should be shifted only if burden is undue because, for example, sources are not reasonably accessible)."

The Court ultimately decides that the parties should share in the additional costs incurred, but with another reference to counsel's competency:

"Since both parties went through the same stop sign, it appears to me that they both should pay for the crash. I will require them to share the cost of the paralegal removing the privileged e-mails, as I have described it, to a cost of no greater than $4,000, i.e., $2,000 each. I expect Revonet to keep a careful record of the time spent and to alert me if there is any risk that the cost will exceed $4,000. At that point (which I hope will not be reached) I will ask Revonet to estimate what it will cost to finish the job and seek the views of counsel as how to cover it.

Characterization of counsel meet-and-confer obligations to discuss nature and format of production as "essential":

"This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native. Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information."

It will be interesting to see how future motions of this type are treated by the Courts.

No comments: