Court Finds Delay in Objecting to a Failure to Produce in Native Format Was "Patently Unreasonable" and Denies Defendant's Motion to Compel Production

Ford Motor Co. v. Edgewood Props., Inc., 2009 WL 1416223 (D.N.J. May 19, 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.”

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Source: ediscoverylaw.com