“Since Both Parties Went Through the Same Stop Sign…They Both Should Pay for the Crash”: Court Orders Parties to Split Cost of Privilege Review

Covad Comm. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)

In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information.  The defendant argued that because the plaintiff failed to specify a format of production, hard copy or .TIFF images were appropriate.  The plaintiff insisted on production in native format.  The court, indicating its displeasure with both parties, ordered production of the documents in their native format, but ordered the parties to split the cost of the necessary privilege review.

Following plaintiff’s initial requests for production, defendant advised that it had retained an “outside consultant to assist in collecting electronic documents…”  Thereafter, defendant advised plaintiff that responsive documents were available in hard copy format for inspection and copying.  Following plaintiff’s insistence that the documents be produced, defendant once again offered to make 35,000 pages of email available in hard copy format for inspection and copying.  Weeks later, defendant offered to make the emails available as TIFF files, but only if plaintiff was willing to pay for the necessary deletions of non-responsive and privileged materials.  The parties could not agree and sought judicial intervention.

The court’s analysis began with the observation that absent a discussion between the parties regarding production, both seemed to be making assumptions based on the other’s behavior, i.e., plaintiff’s expectation of electronic production was based on defendant’s retention of outside consultant to collect its electronic information, and defendant’s expectation of production in hard copy was based on plaintiff’s production in that format.  The court then noted that the parties had invited him to look to the language of the request to determine the appropriate format of production.

The court then turned to the request and noted that plaintiff requested production of documents “as they are kept in the ordinary course of business.”  Regarding the emails at issue, the court stated, “no one is pretending that [defendant] prints all of its emails or converts them to TIFF files on a daily basis…”  Thus, despite the confusing nature of plaintiff’s requests (as discussed by the court), defendant’s proposed format of production in hard copy or TIFF files was not what plaintiff requested.

Moving away from the format of production issue and other fact based considerations, the court acknowledged its own discretion to “focus on the quickest and cheapest solution to the problem.”  The court then indicated a working assumption that the emails were easily retrieved and copied to CD.

Despite the assumed ease of production, the court acknowledged defendant’s burden to delete privileged information from the CD prior to production.  However, the court noted that the cost of the privilege review would have been incurred if the emails were produced in native format in the first place, and that the burden would not have been shifted.  The court again pointed out that the present problems would not have arisen had the parties conferred regarding production.  Despite the fact that the federal amendments were not effective at the time of the requests, the court found that there was sufficient authority at the time indicating that a party could be required to re-produce data in an electronic format even where it was previously produced in hard copy.  Thus, the defendant should have been aware of the risk taken when producing in hard copy.  Conversely, sufficient authority existed that plaintiff should have been aware of authority for the proposition that re-production in electronic format would not be required following hard copy production.

Accordingly, the court held:  “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 emails, as I have described it, to a cost of no greater than $4,000, i.e., $2,000 each.”

The court’s analysis closed with the following admonition:

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.