UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________ ) COVAD COM MUNIC ATIONS ) COMP ANY, ) ) P laintif f, )

) v. ) Civil Action No. 06-1892 (C KK /JMF ) ) REVONET, INCORP ORATED, ) ) Defendan t. ) ____________________________________) MEMORAN DUM OP INION Now pendingbefor e the Court is Revonet’s Motion to Compel Discovery (“MTC”) [#44] and ac company

ing Me morandum in Support. The par ties rec ently

filed a joint stipulation [ #89] in which Revonet withdre w some of its reque sts. I t had bee n my hope that my

resolution of other discovery issues in this case would obviate the need f or judicial interve ntion in thi s instance – particula rly beca use Covad insisted it could not respond to many of these disc overy

reque sts until it obtained the documents that we re the subject of its own Motion to Com pel [#43] . Iresolved Covad’s Motion to Com pel in Dec ember , see Me morandum Opinion [#65] , but Covad still has not responded to most of the discove ry reque sts at issue. I. Background . Covad is a company

that sells voice over

internet protoc ol (“VoI P”) ser vices. In 2004, Covad hired Revone t to ge nerate sales lea ds on Covad’s beha lf. The pa rties enter ed into a contra ct that forms the ba sis of the dispute in this case. As part of its “Covad campa ign,” Revonet wa s involved in ge nerating both inbound andoutbound sales leads. Inbound leads be g an as inquiries that were fielded by Revonet fr om persons or c ompanies who we re inter ested in Covad ser vices. Revone t would determine whether the ca ller wa s someone that Covad would be interested in pur suing. Revone t also g ener ated outbound leads by

callingpeople or

companies a

nd askingwhether

those entities would be interested in Covad se rvice s and whe ther those e ntities fit C ovad’s qua lifying c riteria. Re vonet obtained sourc es for

the outbound calls fr om commerc ial list providers such as Dunn & Br adstree t. All of these ca lls, inbound and outbound, were log g ed by sales assoc iates into a databa se ca lled the Fe dera ted Data base. In 2006, Revonet beg an a ne w campaig n called the Gold campa ign, which was a n
acc umulation of all of the lea ds Revonet had f ound succe ss with in the past, including some that
wer e orig inally

part of the Covad campaig n. Covad and Revone t disag ree about whethe r Revonet wa s permitted to do this under the contr act be tween the parties. In addition to the dispute about the mea

ning of the contra ct, the par

ties quarr el about how much a nd what ty

pe of Covad data w as used by

Revonet in a manne r that Covad ar g ues is improper. Discover y problems have plagued this lawsuit, with both parties hurling insults and
acc usations at eac h other. This controve rsy cente rs on Covad’s re sponses to Revonet’s wr itten reque sts for discover

y . Revonet has pr opounded: (a ) two sets of inter rog atories, ( b) three reque sts for produc tion of docume nts, and (3) r equests for admissions. I t takes issue with Covad’s re sponse, or lac k there of, to ea ch of the se items. Revonet also aske d that Covad provide c ontact informa tion for deponents a

nd indicate whe ther those de ponents wer e still employ ed by Covad. Fina lly , Revonet seeks sa nctions for Covad’ s alleg ed misconduct.
2II. Analysi s. A. Interr ogatorie s. Fe dera l Rule of Civil Procedur e 33 provide s that “[e]ach interrog atory must, to t he extent it is not objected to, be answe red se parately and fully in writing unde r oath.” Fe d. R. Civ. P
. 33(b)( 3). The a

nswer must be “ true, e x plicit, responsive, complete , and ca ndid.” Equal Rig hts Center v. Post Props., I nc., 246 F .R.D. 29, 32 (D.D.C. 2007) ( quoting Ha nsel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E .D. Pa. 1996)); se e also U.S. ex rel. Pogue v. Diabete s Treatment Centers of Am., 235 F .R.D. 521, 524 (D.D.C. 2006) ( mere ly restatingalleg ations insufficient to re spond to interrog atory

). Howe ver, be cause the re sponding pa rty has a c ontinuing duty

to supplement its
answe r, it is sufficient for a par ty to state that it is unable, at the time the answ er is provide d, to provide the infor

mation reque sted but will supplement its answe rs as infor mation becomes available . I d. at 33. I f an a nswer to a

n interrog atory

is incomplete or eva sive, the par ty seeking discovery may move to compel an a

nswer. F ed. R. Civ. P. 37(a). The pa rty seekingdiscovery has the burde n of provingthat the discover y response is inadequate . Equal Rights Center , 246 F.R.D. at 32. Identification of Records In its responses to Revonet’s inter rog atories, Covad r epeatedly objects to Revonet’s questions on the g rounds that they “re quest[] , in whole or in par t, information that it is
asce rtainable from re cords in the possession of D efe ndant.” E.g ., MTC at 11. Whi le Rule 33(d) does per mit a party

to produce or identify

business rec ords in lieu of a na rrative answe r to an interrog atory , that approa ch is inappropr iate her e for two rea sons. First, Covad is not answe ringthe interrog atories by producingits own recor ds and
3direc ting Revone t to searc h for the a nswer in them. It is refe rringRevonet to Revonet’s inter nal files. This approa ch is not sanctioned by the Fe dera l Rules of Civil Procedur e. The y only permit the re sponding pa

rty to answer

an interr og atory

by producingrec ords from whic h the answe r responsive to the inter

rog atory may be der ived, provided the burden of asce rtainingthe answe r is the same f

or both parties. See Advisory Commi ttee Note to 1970 Ame ndment to Rule 33 (“This is a new subdivision . . . relatingespec ially to interrog atories whic h require a par ty to eng ag e in burdensome or

expensive rese arc h into his own business records in orde r to g ive an a nswer. T he subdivision gives the pa

rty an option to make the r ecor ds available and plac e the bur den of
rese arc h on the par

ty who see ks the information.”) ; see a lso Pul liam v. Conti nental Cas. Co., No. 02-CV-370, 2003 WL1085939, at *5-6 (D .D.C. J an. 24, 2003) ( “Unde r Rule 33(d), if an answ er to an interrog atory

may be found in the business r ecor ds of the responding party and the bur den of asc erta ining the a

nswer is substantially

the same f

or the re questingparty

and re sponding pa

rty , then it is a sufficient a

nswer to spe cify

the re cords f

rom which the a

nswer ma y be der ived . . .”) (quoting Fe d. R. Civ. P . 33(d)) (empha sis added). Obviously , if Covad’s appr oach w as cor rec t, propounding an interr og atory and g etting a

n
answe r would bec ome a pe rfe ct circ le. I f the re sponding pa rty wer e per mitted to say

that the
answe r to the interr og atory is to be found in the produc ing pa rty ’s re cords then the proce ss of g etting the information re sponsive to the inquiry would not move forwa

rd an inc h. Second, eve n if it were appropr iate for Covad to answer

the interrog atories by

identifying Revonet’s files, it would be r equire d to specifica lly identify the documents that c ontain the
answe rs. DL

v. District of Columbia, 251 F.R.D. 38, 48 (D.D .C. 2008). Covad g ener ally direc ts Revonet to its own rec ords on the interr og atory ’s subject matter ; it is not as thoug h Covad is
4identifying spe cific doc uments or eve n cate g ories of doc uments where the answe r may be found. Fur ther, a s Ihave note d befor e, interr og atories a re not only

an information gatheringtool, but also an opportunity

to require one’s oppone nt to state its posi tion on an issue in controver sy in writing a

nd under oath. See Melius v. Nat’l Indian GamingComm’n, No. 98-CV-2210, 2000 WL1174994, at *1-2 (D .D.C. J uly 21, 2000). Revonet c ould cer tainly revie w its own files to look for information that supports Covad’s claims, and I cer tainly hope it is taking that action, but it also has the rig ht to hear f rom Covad what infor

mation Covad intends to use to support its claims. Thus the fa ct that Revonet ha s acc ess to the under lying f acts of the case does not mean that it does not have the r ight to see which fa cts Covad dee ms important, and how Covad intends to use those fa cts to prosec ute this lawsuit. Moreove r, if Covad doe s not have a ny such informa

tion, Revonet is entitled to know that
as we ll. Knowing that the respondingparty has no information about a par ticular c ontention prior to the re sponding pa rty ’s produc tion of the discover y demande d from her , establishes a f act that may be important, the ve ry

purpose of

discovery . I f the re sponding pa rty evade s the question by telling the pr oducingparty to look in her own re cords, ther e is another perf ect c ircle. The question “what information do y ou now have in support of your cla im? ” is “a nswere d” by

the response that “you first tell me what infor mation y ou have.” Whil e such squa bbling ha s its place in the schooly ard, it har dly comports with the obligation impos ed by Rule 26(g )(1) (a) that an attorney ’s sig nature on a discove ry response be a c ertification that “with respec t to a disclosure, it is complete and c orre ct at the time it is made.” F ed. R. Civ. P. 26(g)( 1)(a ). Interrogatory Nos. 2-5 In Interrog atory

Nos. 2-5, Revone t asks Covad for spe cific infor mation reg arding
5alleg ations in its complaint. I nterrog atory No. 2 addr esses Covad’ s contention that Revonet took inbound leads, integ rate d them into the Fede rate d Databa se and sha red the m with third parties. No. 2 asks for :
a. the spec ific customer lead infor

mation Revonet took including the name, tele phone number , addre ss and other information obtained; b. the date a

nd manner

in which the lea d information was g ener ated f

rom Covad’s adve rtising c ampaig n;
c. the identity

of the pe rson who alleg edly integ rate d the information into Revonet’s F eder ated Database and the date there of; d. the spec ific Covad customer lead infor

mation alleg edly share d with third parties, includingthe names, te lephone numbers and a ddresse s of the lea ds;
e. the date a

nd manner

in which the customer

lead information was a lleg edly share d with third parties and to whom it was share d. MTC at 10. I nterrog atory No. 3 addr esses Covad’ s contention that Revonet improper ly usurped Covad’s customer

lead infor

mation and adde d Covad’s propr ietary VoI P leads to Revonet’s databa se of VoI P leads. No. 3 asks for :

a. The spec ific customer lead infor

mation Revonet took including the name, tele phone number and other information obtained; b. the date a

nd manner

the customer le ad informa tion was g ener ated a

nd by whom it was g ener ated;
c. the identity

of the pe rson who adde d the information into Revonet’s F eder ated Database and the date there of; MTC at 13. I nterrog atory No. 4 addr esses Covad’ s contention that Revonet sold Covad’s

6proprieta

ry information to Covad’s compe titors. No. 4 asks for:
a. the spec ific propr ietary information that was sold; b. to whom the information was sold;
c. the amount cha

rg ed by Revonet for

the information MTC at 14. I nterrog atory No. 5 addr esses Covad’ s contention that Revonet integ rate d Covad’s inbound leads into its database in violation of the pa rties’ a g ree ment and then use d them to g ener ate outbound lea ds for other clients. No. 5 asks for :
a. the spec ific customer leads a lleg edly

integ rate d by

Revonet into the Fede rate d Databa se and the date they wer e orig inally g ener ated; b. the date a

nd manner

in which the customer

leads we re alleg edly integ rate d into the Fede rate d Databa se;
c. the identity

of all the c ustomers for whom Revonet g ener ated outbound lea ds based upon Covad’ s inbound leads a nd the date those leads we re g ener ated. MTC at 15. Covad provided e ssentially the same a

nswer to e ach of

these four

interrog atories: See the Ge nera l Objections, supra . In addition, Plainti ff objec ts to eac h subpart of this Interrog atory on the basis that ea ch subpar t reque sts, in whole or in part, informa tion that is ascerta inable fr om rec ords in the possession of De fenda nt, namely

Revonet’s re cords of its handling of

Covad’s inbound leads a nd its activities to populate Revone t’s databa ses. The bur den of obta ining that information would be g reater for Plaintiff than for De fenda nt. Plaintiff further

objects to ea ch subpar

t of this I nterrog atory

on the basis that eac h subpart re quests, in whole or in par t, information that is ascer

tainable f rom the Complaint. Notwithst andingand without waiving the se objec tions, P laintiff states as f ollows: In 2004, Covad implemented a ma rketingcampa ign c onsisting of cer tain adver tising ef forts. These adver

tising ef forts g ener ated customer lea d information by direc ting pr ospective c ustomers of
7VoI P services to c ontact Covad through toll free numbe rs and websites. Pursuant to its ag ree ment with Covad, Revonet ag ree d to scre en and f

ollow up with these prospec tive customers in an e ffor t to conver t them into actual customers f or Covad startingin 2004. A Revonet e x ecutive a dmitted to C ovad that Revone t put Covad’s inbound leads into its Feder ated Database and that Covad inbound leads ha d been mone tiz ed for other c ompanies. Covad has bee n informed that: A Revonet e x ecutive instruc ted Revonet e mploy ees to re move all information re lated to Covad fr om Covad’s leads a nd download the a ltered Covad le ads into a Revonet database
. A Revonet e mploy ee na

med Michae l integr ated Covad’ s lead information into the Revonet data base in this manner , on a nightly basis. A Revonet e x ecutive e ncoura g ed Revone t’s employ ees to re fer these lea ds to Covad’s competitors and to re fer them back to Covad as outbound leads. Revonet’s pra ctice w as to pass Covad’s inbound lea ds to Covad’s compe titors by

ref err ing those potential customers to the sales tea

ms of those competitors. A Revonet e x ecutive attempted to actively conce al these activities and, whe n advised of c oncer ns reg arding

these prac tices, direc ted Revonet e mploy ees to c ontinue to do as he order ed. These a ctivities were a re g ular pra ctice at least in 2006. As a re sult of these pra ctices, Covad a nd its competitors often competed f

or business from the sa

me potential customers, a potential customer that ha d been g ener ated through Covad adver tising and ma

rketingcampa igns a

nd identified as a

n inbound lead. A Revonet e x ecutive f

urther a dmitted that Covad’s inbound repr esentatives were used for competitors’ proje cts. These repr esentatives, howeve r, we re by contra ct to be used e x clusively 8to handle Covad’s inbound lea ds. There wer e at lea st two tim es wher e a Re vonet executive re commended that Covad increa se the number of inbound r epre sentatives bec ause of capa city constraints. Indeed, it appe ars that the Cova d inbound team re ceive d a bonus based on f

ees g ener ated by

Covad outbound dialed lea ds, XO dialed outbound leads a

nd Call Tower dia led outbound leads. Revonet fa iled to perfor

m under the a g ree ment with Covad and/or meet expectations with respe ct to the leads g ener ated. One or more Revone t employ ees f ailed to re commend Covad products and se rvice s when dire ctly solicited by

one or more potential customers for

such produc ts and servic es throug h a Covad inbound 800 number. Revonet categ orized one or more Covad inbound leads as outbound leads. Revonet re prese nted that it did not have re cords of Covad inbound leads that did not bec ome qualified; a Revonet executive late r admitted that this repre sentation was not true
. Revonet deve loped and sold a ne w produc t called “ L eads- OnDemand” that appar ently

used Covad’s inbound lea ds without Covad’s conse nt. MTC at 11-12. Revonet a rgues that Covad’s a

nswer is insuffic ient beca use it merely

restate s the alleg ations in the complaint and does not provide the spec ific information that Revonet reque sts, such as na

mes, telephone numbers, addr esses, e tc. Covad re sponds by say ing the purpose of discovery is for Covad to find answe rs to questions like those Revonet asks fr om what Revonet produce s in discovery

or otherw ise has in its files. Covad also arg ues that it should not be require d to answer

questions about Revonet’s c onduct when c lear ly Revonet is in a better position t o deter

mine what it has or ha s not done. Fina lly , Covad argues that it would be able to
answe r the que stions once Revonet’s doc ument production is complete. Whil e I agree with Covad that Revonet is likely better a ble to deter

mine what it has or ha s 9not done in this case, I also ag ree with Revonet’s ar g ument that Revonet’s be ing in a better position t o deter

mine what happe ned does not re lieve Covad of the obligation to answer the questions to the best of its ability . Revonet has a rig ht to know what spec ific alleg ations Covad will seek to prove a

t trial so that it may

proper ly defe nd itself. Covad’s answe r, while leng thy , does not addre ss any

of the leg itimate specific que stions that R evonet pr opounds. Also, one of Covad’ s main defe nses for the lack of specific ity

in the response s is that they had not re ceive d documents fr om Revonet. Yet, 35,000 doc uments have since been pr oduced, but the interrog atories ha ve not bee n supplemented in any way . Interrogatory No. 6 Revonet def

ers its reque st for an a

nswer to this interrog atory . See Joi nt Sti pulation at 2. Interrogatory No. 7 Interrog atory

No. 7 see ks information about Covad’s a lleg ation that Revonet is continuing to use Covad’s information ill icitly . Revonet asks for the spec ific customer information and the dates and manne r in which it is being used. Covad re sponds:

After the termination of the a g ree ment betwee n Revonet and Covad, Revonet on seve ral oc casions stated to Covad that Revone t would consider “ returning ” Covad’s inbound infor mation to Covad. These leads have not bee n “re turned” to Covad, and Covad is not aware that they

have be en re moved from Revone t’s databa ses. MTC at 18. Presumably

Covad means to alleg e that all of its customer inf ormation is stil l being used by Revonet bec ause Revone t has not produce d the leads. B ut, that Revonet still has the leads doe s not answer

the question of what information Covad has that would tend to show that Revonet is still using the leads. Ac cording ly , Covad must supplement this i nterrog atory by

10indicating specific ally what information it has (if any ) that Revonet is still usi ng the leads. Ag ain, I note that Covad’s statingtruthfully that it has no such information adva nces the discovery proce ss and may

be the pr oper a

nswer. Interrogatory Nos. 8-10 Interrog atory

Nos. 8-10 re quest Covad’s basis for claiming that Revonet bre ache d the 2004, 2005, and 2006 contr acts, re spectively . Revonet re quests dates of the alleg edly wrong ful conduct. Covad r esponds by quoting what it calls the “Mutual Confidentiality and Data Use Ag ree ment,” which it cla ims was part of a ll three c ontrac ts. Covad then claims that Revonet disclosed conf

idential customer infor

mation to other clients in violation of those provisions and cites to its answer to Interrog atory No. 2 (re printed above ). Covad also states tha t Revonet brea ched the 2005 contra ct by failingto provide dedic ated a ccount r epre sentatives. Covad doe s not give any

dates. Covad must either state the da tes on which the br eac hes occ urre d, if it knows them, the specific manner

in which the bre ache s occur red, a nd why it believes a br eac h occur red on those dates. Ag ain, statingthat it does not know, if truthful, may be the c orre ct answe r. As to the 2005 contra ct, which c ontains a provision that is not found in the other two contr acts, Covad must also supplement its answer to indicate whethe r the a lleg ed ac tions took pl ace while the contr act wa s in effe ct, and indica

te the basis for

its contention. Interrogatory No. 11 Revonet def

ers its reque st for an a

nswer to this interrog atory . See Joi nt Sti pulation at 2. Interrogatory No. 13 Interrog atory

No. 13 asks Covad to identify all initial meetings sche duled by Revonet for
11Covad and indicate whethe r the mee ting wa s attended. Covad doe s not answer the interrog atory except to reser

ve its rig ht to supplement and object on the grounds that I have a lrea dy

reje cted. Thus, Covad must answer this interr og atory now. Interrogatory No. 17 Interrog atory

No. 17 asks Covad to identify the people who may

have inf ormation about the lawsuit. Covad re sponds with a list of names. Revonet ar g ues that Covad should have identified the individuals in acc ordanc e with the def inition of “identify ” in the re quest for production of doc uments, which includes f ull name, pre sent or last known home a nd business addre ss, present position, business affiliation, and job desc ription or last known, if cur rent information is unavailable . Revonet say s it needs this information to facilitate c ontactingthe individuals for depositions if nece ssary . Covad responds that it shouldn’t have to pr ovide that level of de tail beca

use Revonet did not provide that information in response to a simil ar interrog atory . Ihave a dmonished these par ties befor e that it is of no moment to me that Revonet alleg edly g ave ina dequate answe rs; the ade quacy of Revonet’ s answer s is not before the Court and Covad is not justified in providing insuffic ient answe rs just beca use Revonet did. I f Covad was dissatisfied with Revonet’ s response, it should have soug ht relief f rom the Court. Be cause Covad offe rs no leg itimate rea son why it didn’t answer the interrog atory fully , Iwill order that it do so. Second Se t of Interrogatories Covad has not re sponded to Revonet’s se cond set of inter rog atories, or

objected to them, and see ks to justi fy

this behavior by

arguing that Revonet has not fulfilled its discovery obligations either. Ag ain, I find this argument unpersua sive and will there fore order Covad to
12respond f

ully to Revonet’s interr og atories. Timing Be cause Covad’s answe rs ar e insuffic ient in that they do not answer

the questions asked, Iwill order that they

be answ ere d fully

within 10 day s. I f Covad cur rently does not know the
answe r to these que stions, it must so st ate. Also, I remind both parties of

their continuing obligation to suppl ement their discove ry response s as more infor

mation comes to light. I

expect that many of these a

nswers w ill require suppleme ntation to include the the re sults of the fore nsic analy ses that I

have or dere d.

B. Fir st Request t o P roduce Doc um ents. Revonet has withdra

wn or de fer

red its re quests reg arding its First Request to Produce Documents, but see ks an orde r compe lling Covad to provide a written statement indicating that it has produc ed all docume nts responsive to re quest nos. 4, 11, 13, 19, 20, 21, 22, 24, 25 and 31-39. Covad shall either pr oduce a ny documents it has that ar e re sponsive to these re quests and have not been pr oduced, or

provide the written statement as r equeste d. C. Second Request to P roduce Doc um ents. Revonet initially

soug ht written response s to its S econd Re quests for Produc tion as well as a pr ivilege log but ha s since withdra wn those re quests. Revonet neve r soug ht production of documents in response to this request in its Mot ion to Com pel. Acc ording ly , it is m y understandingthat this request is withdrawn c ompletely
. D. Third Requ est t o P roduce Doc um ents. Covad neve r re sponded to Revonet’s third re quest for doc uments other than to indicate at one point that it intended to produce documents on a c erta in date. It did not produce those
13documents or tende r objec tions. I n its opposit ion, Covad merely states that it is will ing to participate in discovery

when Revone t participate s in discovery . Paradoxically , Revonet produce d its electronic doc uments in acc ordanc e with my previous opinion months ag o, but Covad appa

rently has not rec iprocated. I

have a lrea dy

discussed my

view that Covad is not justified in withholdi ngdocuments bec ause it fe els that Revonet has done the same. Acc ording ly , Iwill order that Covad f ully respond to Revone t’s reque st for produc tion. E. Requests for Admissions. In lieu of a r esponse to seve ral re quests for a dmissions , Covad stated that it was conductinga fur

ther inquiry

and would either

admit or deny

the re quest upon completion of that inquiry . I t has bee n over six mont hs since Covad made that statement and, I must conclude that Covad has had suf

ficient time to deter

mine whether

it is wil ling to authe nticate a series of contra cts or not. Acc ording ly , Covad shall supplement these r esponses within 5 day s of the date of this opinion with one of the response s permitted by Rule 36(a) (4) of

the Fe dera l Rules of Civil Procedur e. F . Inf orm ation Abou t De ponents. Covad g ives no leg itimate justi fica tion for its failure to provide information about deponents, a

nd so Iwill order that Covad pr ovide that information. G. C onsequ ences. The F eder al Rules of Civil P roce dure c lear ly proscr ibe conse quence s for fa ilures to comply with the rules per

taining to discove ry . Revonet invokes those rule s seekingcosts and attorne y s fee s it incurred in attempting to
secur e re sponses to these var ious discovery reque sts. I t also demands that Covad be deeme d to
14have w aived a ny objections it will m ake onc e it responds to Revonet’ s reque sts pursuant to the Orde r I will issue. 1. Attor ney F ees Covad argues that Revonet wa s responsible for the delay and Covad should not be penalized. Covad ar gues that it was eng ag ing in a g ood faith attempt to forc e its opponents to produce a set of e lectronic documents and so de cided to complete ly remove itself from the discovery proce ss. I t is not surprising, consider ing that strateg y , that this case ha s been in discovery for year s and little or no actua l discovery has take n place . Icer

tainly do not wish to condone the sort of vig ilante sanc tions that Covad has unilaterally imposed on Revonet in this
case . Ialso remind Covad that, while I ruled in its favor on its Motion to Com pel documents from Revone t, Revonet’s position that it had complied with its discovery obligations was not frivolous, but a leg itimate leg al controve rsy . I f Covad wa nted to expedite the discovery proce ss so badly , it should have soug ht court interve ntion sooner rather than r efusingto participate in the proce ss. Fur ther, Covad’ s repe ated a ssertions that it was mere ly withholding items until it rec eived its due have be en ca lled into question by its behavior in re cent months. Idecide d Covad’s Motion to C ompel in Dece mber, a nd intentionally

withheld decision on this motion t o g ive Covad the opportunity

to do as it so ferve ntly

claimed it would, and r ender the objections voice d in this m otion moot. Nearly five months have e lapsed since Isettled the controve rsy reg arding the ade quacy

of Revonet’ s production and it appe ars nothinghas happe ned. Unde r those circ umstances, I

find it difficult to believe Covad’ s insist ence that it is entirely without fault. For those rea sons, Iwill, in accor dance with Rule 37(a)( 5)(A) order that Covad show
15cause why it should not pay

the re asonable costs and attorne y s fee s that Revonet incurr ed in prepa ringand filingthis mot ion.

2. Interr ogatorie s and Requests to P roduce “A f ailure to file a

timely objection to interrog atories c onstitut es a w aiver of any objection unless g ood cause is shown. Fed. R. Civ. P. 33(b)(4). Without a showing of g ood
cause , defe ndant’s fa ilure to respond to the inter rog atories or dinarily

compels the c onclusion that the untimely

objection is waived.” By rd v. Reno, No. 96- CV-2375, 1998 WL429676, at *4 (D.D.C. F eb. 12, 1998). Whil e F eder al Rule of Civil P roce dure 34, pe rtainingto reque sts for 1 production of doc uments does not contain a similar wa iver provision, “the re is no re ason to g ive it a dissimi lar interpr etation. To the c ontrary , the fe dera l courts have held that a f ailure to file a

n objection to a re quest for pr oduction of docume nts may be dee med a wa iver.” I d.; see a lso Paul W. Grimm, C harle s S. Fax & Paul Mark Sandle r, Discove ry Problems and Their Solutions, 244 (2005). 3. Requests for Adm ission s Rule 36(a) (3) pr ovides that a re quest for a dmission i s deeme d admitted “unless within 30 day s after beingserve d, the par

ty to whom the reque st is directed ser ves on the re questingparty a written answe r or objec tion addresse d to the matter a nd signe d by

the par ty or attorne y .” F ed. R. Civ. P . 36(a) (3). 4. P roce dure In this case, it is at this point unclear whe ther Covad will asser t any objections to any

of
Acc ord Huthnanc e v. District of Columbia, 255 F.R.D. 285, 287 ( D.D.C. 2008); My rdal 1 v. District of Columbia, No. 05-2357, 2007 WL1655875, at *3 (D.D .C. J une 7, 2007); F onville v. District of Columbia, 230 F.R.D. 38, 42 (D.D .C. 2005). 16the discover y that Iam compelling . There fore , whether any hy pothetical objec tions have bee n waived is unc lear , particula rly in light of the f

act that wa iver c an be ove rcome by a showingof g ood cause . I f Covad asse rts no objections, the point is moot. According ly , the Orde r I am issuing provide s a sche dule pursuant to which I will permit the parties to brief whether any objections Covad does make should be dee med waive d and whe ther it should be dee med to have admitted any

reque st for admissions to which it objects. Icaution Covad, howe ver, that Iwill not conclude that withholding discove ry to try and for ce Re vonet’s hand c onstitut es “g ood cause ,” and I will not look ki ndly

on y et another

brief f illed with alleg ations about the opposing party ’s malfea sance . That is a subjec t on which I am alre ady

well ver sed. III. Conclusi on. For the re asons discussed he rein, Revone t’s Motion to C ompel [#44] will be g rante d. An Orde r ac companies this Memora ndum Opinion.

Date: Ma

y 29, 2009 /S/ J OHN M. F ACCI OLA U.S. MAGI STRATE J UDGE

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