Court Asks Defendant Whether It Will Comply With Agreement to Produce Electronic Copies of Litigation Hold Documents

In a case that has turned into an e-discovery saga, United States Magistrage Judge John M. Facciola has issued another ruling in Covad Communications Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (DDC Aug. 25, 2009). For a copy of the Memorandum Opinion click here: Download Covad v Revonet - DDC 082509.  For some previous e-discovery postings about Covad v Revonet click here and here.

To make a long story short (see links above for the long story), Revonet was ordered in December of 2008 to re-produce e-mails in electronic form (it had previously produced 35,000 e-mails in paper form, which the court found unacceptable).  For some reason the number of electronic e-mails was smaller than the number of paper e-mails.  During the course of a further motion to compel compliance plaintiff raised a number of issues:

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.

The court propounded a number of questions to defendant to sharpen the issues before the court, including questions Nos. 2 and 3 regarding production of litigation hold documents:

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 Request for Production of Documents?

2. Will Revonet produce what Covad calls the litigation hold and search term documents in native format?

3. Does Revonet consider itself bound, by either the Requests for Production or by some agreement with counsel to produce the litigation hold and search term documents? If not, why not?

4. Has Revonet produced or will it produce the items that Covad argues were identified in Revonet's initial disclosures?

Apparently a promise was made to provide the litigation hold documents and search terms to plaintiff.  As we have seen before, such a representation by counsel can work to bind a party to its promise, even if it results in the production of attorney-client privileged documents.  See In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (DDel Jun. 4, 2008).

Stay tuned to see if the court orders production of the litigation hold letters and search terms, whether defendant turns them over or something in between.