Court hints that it will require re-production of data in native format where paper production is not reasonably usable

October 8, 2009 | Leave a Comment

Covad Communications Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009)

Plaintiff requestor filed a motion to compel compliance with the court’s previous order compelling production. Requestor argued that producer had not complied with the court’s order to produce emails in native format. Producer conceded that a discrepancy existed between the contents of a .pst file and the 35,000 pages of emails previously produced on paper. It explained that the original search platform could only produce documents in HTML format, and when it employed a different search platform to produce the .pst file, it could not re-run the original search exactly. It further claimed that it would be too burdensome to cross-reference the electronic documents against the paper production to determine the extent of the missing emails.

The court found:

While I appreciate that it would be difficult for [producer] Revonet to go back through its papers to determine whether all of the documents contained therein have since been produced and that Revonet’s present counsel did not supervise or conduct the August, 2008 search for e-mails, I also appreciate that it is a burden of Revonet’s own making. [Requestor] Covad should not be penalized by Revonet’s failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit.

Id. at *7-*8.

In addition, the court had already decided that producer must produce the 35,000 pages of emails in native format, “and I have not seen any new information that causes me to revisit my conclusion on that point.” Id. at *8. Producer would be required to produce the missing emails. The court, however, was open to reconsideration if producer and its vendor could not “devise a less time consuming means to cross-reference the HTML and .pst results, alleviating the difficulty of comparing the hard copies one by one with the e-mails in .pst format.” Id. at *8 n2.

2,832 pages of other hard copy materials “were useless because they were mostly paper printouts of spreadsheets that run horizontally across several sheets of paper, resulting in a sea of seemingly random numbers and data, with no effective labels, column headings, or other identifying information.” Id. at *10. Producer refused to re-produce the data electronically, but asked requestor to prioritize the data. Requestor identified 148 documents to be so produced. In the motion, requestor asserted that it had not received any, and demanded that all 2,832 pages be produced electronically. Producer responded that it would produce the 148 documents electronically.

The court noted that the parties were still working to resolve the dispute, so prior to ruling, the court required producer to answer whether it had produced the 148 documents, and whether it would produce the remaining documents electronically. The court further observed that the rules required that documents be produced in the order in which they were ordinarily maintained, and that they were not so produced. In addition, cases interpreting Rule 34 have held it improper to take electronically searchable documents and degrade the search capability. The court concluded: “Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.” Id. at *14. The court stayed action on requestor’s motion to compel pending responses to the questions posed.

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