Playing with Fire: Producing ESI as Paper

“…Revonet’s producing the e-mails only in hard copy played with fire. ”

Magistrate Judge John Facciola, Covad Communications Company v. Revonet, Inc.

 I have blogged on parties failing to state a form of production in prior postings and producing parties attempting to produce ESI as paper or non-searchable TIFFs

 In Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008 ) the Defendant Revonet insisted that it be allowed to produce email messages in hard copy or as TIFF, provided the Plaintiff Covad paid for the necessary deletions of privileged email messages, because the Plaintiff Covad did not specify the form of production of the email messages in their request.   

 The comedy of errors leading to this discovery “car crash” as Judge Facciola called the debacle, included following:

  • The parties not following the Federal Rules of Civil Procedure’s requirement to meet and confer on the form of production;
  • Not Stating the Form of Production in the Request, and;
  • Sloppy boilerplate production instructions in the discovery request preamble.

 I would also add the possibility the law firms did not understand their litigation support software or were not using it to the product’s full capabilities. This point is not discussed in the opinion and will be the subject of a separate posting on production workflow.

 Despite the ambiguous instructions in the discovery request where someone could argue the request allowed several production formats, the Court stated, “no reasonable person can honestly believe that hard copy is one of them.”  The Court further stated:

 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.

 The Court ultimately ordered the production of the email messages in native file format.  The estimated cost of production was under $2000. As Judge Facciola stated, producing ESI as paper is playing with fire.  While the burn in this case was minor, lawyers would be well served by 1) Discussing Form of Production at the Meet & Confer 2) Specifying the form of production in their request 3) Understanding the abilities of their litigation support solutions.