E-Discovery Continues to Prove Contentious

September 8, 2008
Client Alert Newsletter September 2009

It has been five years since the seminal electronic discovery ("e-discovery") case, Zubulake v. UBS Warburg was decided, yet courts continue to face disputes and issue decisions defining parties' obligations with respect to e-discovery. In one such case, Ford Motor Co. v. Edgewood Properties, Inc., the U.S. District Court for the District of New Jersey ruled on two e-discovery issues relating to the production of documents. The litigation centered around a contract between Ford Motor Co. ("Ford") and Edgewood Properties Inc. ("Edgewood"), whereby Edgewood agreed to haul off concrete after the demolition of a Ford assembly plant in Edison, New Jersey. When the concrete was later found to be contaminated, Ford brought suit against Edgewood to recover clean-up costs it incurred pursuant to the Comprehensive Environmental Response, Compensation and Liability Act and the New Jersey Spill Compensation and Control Act.

During discovery, Edgewood filed two motions against Ford raising e-discovery issues. The first motion sought to compel Ford to produce documents in their native format (i.e., containing metadata). Although Edgewood had initially requested that the documents be produced in their native format, which it was entitled to do under the Federal Rules, Ford objected to such request and instead produced the documents on a rolling basis in TIFF format, which does not contain metadata. Relying on Federal Rule of Civil Procedure 34, which sets out the procedure for producing electronically stored documents, the Court denied Edgewood's motion to compel, holding that Edgewood waived its rights to obtain the documents in native format because it waited over eight months after production began to object to the production format. In its second motion, Edgewood objected to the adequacy of Ford's manual document collection process and sought employment of a third party vendor to perform searches of electronically stored documents to ensure that Ford produced all relevant documents. Citing the Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, a leading authority on electronic document retrieval and production, the Court also denied Edgewood's motion, noting that such a burdensome request at this late stage in discovery was not warranted, particularly in light of the presumption afforded to the responding party to choose an appropriate method for document harvesting.

The take away from Ford Motor, as highlighted in the Court's decision, is the importance of cooperation among parties to agree upon appropriate discovery exchanges prior to engaging in e-discovery.