JOHN M. FACCIOLA, U.S. Magistrate Judge for the District Court in Washington D.C., worked late Christmas eve to give us all a present; he wrote yet another memorable e-discovery opinion: Covad Communications Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). The opinion showcases the archaic pre-digital Requests for Production of documents still used by many, perhaps most attorneys in America. The use of such Twentieth Century practices in the Twenty-First Century, along with the failure of counsel to communicate and cooperate as required by Rule 26(f), are the main reasons Judge Facciola had to work late the night before Christmas to resolve this discovery dispute.
Here plaintiff’s counsel used a form Request for Production (“RFP”) that was obviously designed for paper production, and then complained when the responding party produced in paper format the information responsive to the RFP, which, of course, was email. The plaintiff moved to compel the production of the email again, but this time in its native format. The defendant refused to produce for a second time the 35,000 pages of emails. Defendant did offer to produce the emails electronically, but in TIFF format, and only if the plaintiff would pay the fees the defendant would have to incur to delete and electronically redact privileged and irrelevant emails from the TIFF production. Plaintiff refused, contending that native production was required under the rules. Thus we have the dispute presented to Judge Facciola for resolution on Christmas eve.
The Terms of the Antique RFP
The first thing to do to try to resolve a discovery dispute is look at the discovery request itself. The RFP in question here was served on April 27, 2007. It instructed the defendant to:
[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.
Nice to see such a detailed instruction on how to arrange the staples and paper clips in a production. Yes, this was an effective form in its day, which was at least 40 years ago! This same instruction could have been used (and probably was) in the Nineteenth Century, referring as it does to the paper clip, invented in 1867, and the staple fastener, invented in 1877. The only thing missing was an instruction for Bates stamping, patented in 1893, which you will still often find in many RFPs.
Still, it gets worse. The RFP goes on the define “documents” as:
[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.
Those of us who have been practicing law a long time instantly recognize this as an old form RFP, and I mean really old. Most of it was obviously prepared in the 1970s before the advent of personal computers, but spiced up by someone recently who added two words, “instant messages,” as an example of a “tangible thing.” So much for modernization! The RFP does not, in anyway, mention electronically stored information (ESI), the desired form of the production of ESI, for example, native format; nor does it breathe a word about metadata. In fact, even though someone added “instant messages” to the paper laundry list, it nowhere mentions emails. Instead, it requests “magnetic impulses,” “computer tape,” and “computer cards.” That is the kind of thing you might use for giant, old, IBM computers in the 1950s. Adding these words to the “document” definition made you look quite modern in the middle of the last century, but are just short of absurd today.
If you think that this is a rare exception of big firm blundering, you would be wrong. I wager that every AmLaw 100 firm has some trial lawyers who still use paper RFPs that are not too different from this one. Trial lawyers are an independent bunch; getting them to follow law firm best practice suggestions is, as the saying goes, “like herding cats.” It seems like the last thing that they and their obedient associates will part with are their old forms. No, instead they will spice them up from time to time by throwing in newfangled terms like “instant messages” and delude themselves into thinking that is good enough.
Although Judge Facciola points out the archaic language used, neither he, nor I, mean to cast stones on any particular law firm. In fact, the law firms in this case are very good by anyone’s standards, especially the plaintiff’s firms who used this form. No, we only take to task the individual lawyers in every firm who stubbornly cling to a contentious paper world that has long since passed them by. Their refusal to change and conduct discovery in a proper manner has consequences, none of them good, as Covad Communications Co. v. Revonet, Inc. demonstrates.
Judge Facciola’s Reaction to Ancient Boilerplate
Getting back to Judge Facciola’s Christmas eve labors, here is how he explains the predicament the parties presented to him for resolution:
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, FN1 See D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 47 (D.D.C.2008), 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.
The New Rules
Rule 34 of the Federal Rules of Civil Procedure states that: (1) the requesting party may designate the form in which the ESI should be produced; and, (2) if the request does not so specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. The form in which ESI is “ordinarily maintained” is its native format. So when an RFP does not specify a form of production, you must produce in native or in a “reasonably usable form.” This typically means an electronic form that is indexed and so can be searched by computer.
The plaintiff thus argued that the new rules require electronic production of email, either in native format or searchable image format, such as the TIFF offered by defendant. The defendant argued that the RFP asked for paper, and that is what they got. I assume they also argued that Rule 34 states that “a party need not produce the same electronically stored information in more than one form.” Here is how Judge Facciola deals with this quagmire of the parties own making:
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.FN2 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. 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.
Footnote two in the above quote is worth reading in full, as it is a astonishing estimate of email volume that is far higher than previous estimates I have seen:
FN2. Note the following remarkable estimate:
Statistics, extrapolations and counting by Radicati Group from August 2008 estimate the number of emails sent per day (in 2008) to be around 210 billion. 183 billion messages per day means more than 2 million emails are sent every second. About 70% to 72% of them might be spam and viruses. The genuine emails are sent by around 1.3 billion email users.
Heinz Tschabitscher, How Many Emails are Sent Every Day? (last visited December 22, 2008).
The Christmas Eve “Stop Sign Crash” Case
Judge Facciola then focuses on the bottom line, how to best resolve this dispute in a situation where there is plenty of blame to go around. As usual, he does so with style and colorful language, which is bound to have us all remembering this decision as the “stop sign crash” case.
A much more fruitful use of the broad powers I unquestionably have to supervise discovery is to focus on the quickest and cheapest solution to the problem presented. I will assume that the e-mails at issue exist in what I have called their native format and can be copied onto a CD with a couple of keystrokes. Obviously, printing them or converting them to TIFF files probably (and ironically) costs more so Revonet is hard pressed to claim that producing them now in their native format is unfairly burdensome.
There is one burden, however: the cost of deleting privileged information from the CD to be produced. At one point, Revonet agreed to produce the e-mails in TIFF for-mat but insisted that Covad pay for a paralegal to “manually delete the non-responsive and privileged TIFF’s that have already been redacted from the paper document production.” Exhibit D to Pls. Mot. at 6. Revonet estimated that this would take the paralegal 5 to 10 hours at a rate of $178.50 for a maximum cost of $1,785.00. Id.
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.
Judge Facciola then concludes by making the moral of this Christmas eve story very clear:
Finally, I would hope that my decision will have a didactic purpose. 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.
Thanks for the Christmas present Judge Facciola; we all appreciate it!