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Court Finds Delay in Objecting to a Failure to Produce in Native Format Was “Patently Unreasonable” and Denies Defendant’s Motion to Compel Production; Court Also Denies Motion to Confirm Adequacy of Defendant’s Manual Search

Posted in CASE SUMMARIES

Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418 (D.N.J. 2009)

In this case, arising from allegations surrounding contaminated concrete following the demolition of a Ford plant in New Jersey, defendant Edgewood Properties (“Edgewood”) brought several motions before the court, including a motion to compel production of documents in their native format (or documents containing metadata) and a motion for an order granting Edgewood the right to confirm the adequacy of Ford’s manual collection process by searching the electronic systems of certain custodians.  Finding Edgewood had waived its objection to the format of Ford’s production by failing to object within a reasonable time period, the court denied Edgewood’s motion to compel.  The court also denied Edgewood’s motion to allow access to certain of Ford’s electronically-stored records citing inter alia the burden to Ford and Edgewood’s failure to make a showing of Ford’s purposeful or negligent withholding of documents.

Edgewood’s initial document request called for the production of electronically stored information (“ESI”) in its native format (or with metadata).  Ford responded by informing Edgewood of its intent to produce “Tagged Image File Format (“TIFF”) with accompanying searchable text.”  The parties failed to reach agreement regarding the format of production, and Ford produced its documents as indicated, in TIFF format.  Ford made three productions in TIFF format, one in March 2008, one in August 2008, and one in November 2008.  Following the third production, in January 2009, Edgewood sought to compel re-production of Ford’s documents in native format, as originally requested.

Beginning its analysis with Fed. R. Civ. P. 34, as discussed in Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), the court elucidated the parameters of the rule which allow for the requesting party to specify the format of production, but also for the responding party to object to such specification.  Per the rule, upon objecting, the responding party must also indicate its intended format of production.  If the requesting party opposes the suggested format, the parties are required to meet and confer before filing a motion to compel.  The court’s analysis also acknowledged the need to consider the necessity of producing metadata to allow equal access to the information produced, as discussed by The Sedona Conference©, and that court’s have generally ordered the production of metadata “when it is sought in the initial document request and the producing party has not yet produced the documents in any form.”

Turning the facts before it, the court highlighted a colloquy between the court and counsel at hearing in which Edgewood acknowledged its delay in objecting to Ford’s production for many months, despite Ford’s repeated production of documents in TIFF format.

Accordingly, the court found that Edgewood’s delay in objecting to Ford’s production was “patently unreasonable,” reasoning:

One may reasonably expect that if document production is proceeding on a rolling basis where the temporal gap in production is almost half a year apart, a receiving party will have reviewed the first production for adequacy and compliance issues for a reason as obvious as to ensure that the next production of documents will be in conformity with the first production or need to be altered.  It was incumbent on Edgewood to review the adequacy of the first production so as to preserve any objections.  The Court is not dictating a rigid formulation as to when a party must object to a document production.  Reasonableness is the touchstone principle, as it is with most discovery obligations.  The simple holding here is that it was unreasonable to wait eight months after which production was virtually complete.

Denying Edgewood’s motion to compel re-production, the court ended its discussion by highlighting the need for cooperation among counsel:

It is beyond cavil that this entire problem could have been avoided had there been an explicit agreement between the parties as to production, but as that ship has sailed, it is without question unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection…  Parties would be best to heed the admonition of a recent court that "the best solution in the entire area of electronic discovery is cooperation among counsel."  William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009).

The court next turned to Edgewood’s request to confirm the adequacy of Ford’s manual document collection processes by using a vendor to perform a “narrowly tailored key word search of electronically-stored records from a limited time period associated with certain custodians.”  Citing The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, the court acknowledged that reliance on manual searching may be considered “infeasible or unwarranted” in certain situations and that automated search methods “should be viewed as reasonable, valuable and even necessary.”  Citing the same document, however, the court also noted that absent agreement, “a [responding] party has the presumption, under Sedona Principle 6, that it is in the best position to choose an appropriate method of searching and culling data.”

Reasoning that the “gravamen of Edgewood’s complaint is that it suspects it had not received all of the documents to which it is entitled ,” the court acknowledged prior courts’ refusal to be swayed by such speculation and found, in this case, that “reinventing the wheel here would be unduly burdensome to Ford.”

In denying the motion, the court also found that Edgewood had failed to make a colorable showing of Ford’s purposeful or negligent withholding of documents and stated that “[t]he notion that a document production is insufficient based on a belief that documents must exist simply is not enough to grant a motion to compel that would require Ford to go back to square one and begin its collection efforts anew.”  The court further reasoned that “[t]o countenance such a holding would unreasonably put the shoe on the other foot and require a producing party to go to Herculean and costly lengths…in the face of mere accusation to rebut a claim of withholding.  This scenario is not contemplated by the Federal Rules.”

A copy of the full opinion is available here.