Be careful what you ask for…or don’t ask for! Electronic discovery may be something of a new phenomenon when it comes to the discovery of information in preparation of litigation but one idea has always remained constant: discovery requests should always be specific. That’s what Edgewood learned in Ford Motor Company v. Edgewood Properties Inc., a case that arose from a contract in which Ford agreed to provide concrete to Edgewood in return for Edgewood hauling it off the demolition site where a Ford assembly plant in Edison, New Jersey was being demolished. Besides the discovery process, what wasn’t so “smooth” was the concrete, as it later turned out that the concrete was contaminated, thereby bringing about Ford’s claim against Edgewood under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the New Jersey Spill Act for “contribution and indemnification for all costs as provided under the contract.”

Edgewood Properties, Inc. (defendant), however, stood as solid as concrete against Ford’s (plaintiff’s) claims, as the party brought a counterclaim against the plaintiff alleging “breach of warranty, common law fraud, unjust enrichment, violation of the New Jersey Consumer Fraud Act, contractual indemnification and violations of the Spill Act.” Moreover, the parties brought five discovery issues before the Court for the Court’s consideration: an affidavit of an employee of J&L Management, a company that was a former party to the case but now settled, settlement negotiations between plaintiff and New Jersey Department of Environmental Protection (“NJDEP”), plaintiff’s document collection method, a joint defense agreement, and requests for plaintiff’s electronically stored information to be in native format.

With regards to the J&L employee’s affidavit procured by defendant for which the plaintiff sought disclosure, defendant argued that the affidavit was protected from disclosure because of the work product doctrine. According to Infosystems, Inc. v. Ceridian Corp., an affidavit purports to be a statement of facts within the personal knowledge of the witness and not an expression of the opinion of counsel. While the defendant alleged that counsel “cherry-picked” certain topics in the affidavit in “which the affiant would testify,” the court held that because the affidavit was purely factual and contained no mental impressions or legal theories of counsel, defendant had to disclose the affidavit to the plaintiff. Another loss for defendant was the court’s denial of their motion to compel the settlement negotiations between plaintiff and NJDEP, as defendant failed to make a particularized showing that its discovery would lead to the discovery of admissible evidence and because the court feared that its disclosure would “have a chilling effect on negotiations between government entities…and potential responsible parties,” since in this case, the document let to an administrative consent order between NJDEP and the plaintiff.

The defendant felt yet another blow in the discovery battle when it also lost on the issue regarding plaintiff’s document collection method, which they alleged was flawed, implying that the plaintiff was withholding documents. However, according to the Sedona Principles, which are “leading authorities on electronic document retrieval and production…absent an agreement or timely objection, the choice [of document collection method] is clearly within the producing party’s sound discretion.” The court held that the defendant did not make a “colorable showing” that plaintiff purposefully or even negligently withheld documents and the idea that document production is incomplete merely because the defendant believes some documents exist was neither contemplated by the federal rules nor is it sufficient to “grant a motion to compel” plaintiff to go back to “square one and begin its document collection efforts anew.” The court also seems comfortable going against defendant in this discovery issue because they have other recourses available, such as depositions or fact witnesses who might have knowledge in the areas for which the defendant believes documents still exist.

To the defendant’s pleasure, the Court finally gave them something when they ruled that defendant has a right to know which parties are maintaining a common defense against it. According to Warren Distrib. Co. v. InBev USA L.L.C., “the relevancy of a joint defense agreement depends upon the language of the agreement.” Here, while defendant had a right to know the parties, it was not allowed the joint defense agreement that plaintiff had with other parties, as the agreement contained “standard and boilerplate language” that is undiscoverable due to its irrelevancy to any claim or defense in the case. Again, we saw that defendant had another avenue open to it, the existence of which might have made the court comfortable in denying the request for the agreement—the name of the parties, which is sufficient

to conduct depositions or interrogatories to know whether there is witness bias.

Perhaps the most important issue in the realm of electronic discovery was raised when defendant requested that the plaintiff’s electronically stored information (“ESI”) be re-produced in a native format “as opposed to the format in which Ford produced the documents (TIFF).” However, it seems as if the parties never agreed as to the format in which the documents would be produced and thereafter plaintiff produced them in TIFF format. According to Aguilar v. Immigration and Customs Enforc. Div. of U.S. Dep’t of Homeland Sec, “under rule 34, a party may request the form of production as metadata…the responding party then must either produce ESI in the form specified or object. In this case, however, there was no specific request.

According to Principle 12 of the Sedona Principles, without an agreement as to a form of production, “production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form…[and] the producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable.” However, the court notes that this principle is more readily applicable in a situation in which “production had not yet commenced” and not here where the plaintiff’s production is already complete. Thus, it appears obvious that defendant has lost, as of

now, the ediscovery battle since after plaintiff’s production of the ESI, defendant waited from March 2008 to November 2008 to object to plaintiff’s production and “even then it waited two months to bring the problem to this Court’s attention.” It was unreasonable to wait eight months after production was nearly complete to object as to form of production and while the Court does not purport to be establishing a rigid formula as to when a party must object to document production, “reasonableness is the touchstone principle.”

With electronic discovery on the rise, as information can now be stored in more devices than before, “the best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assc., Inc. v. American Mfrs. Mut. Ins. Co, 256 F.R.D. 1361 (S.D.N.Y. 2009). Here, there should have been an explicit agreement among counsel with regards to the form of production of ESI and counsel should have engaged in a meet and confer to clarify any electronic discovery issues.

Author Bio: S.A.A. is a student at Seton Hall University School of Law, Class of 2012. Receiving awards for the Best Memorandum, Appellate Brief, and Oral Argument in her class section, S.A.A. hopes to pursue a career in public interest. Prior to law school, she was a 2009 magna cum laude graduate of Hofstra University’s Honors College where she majored in Political Science. S.A.A.’s experience include legal research and writing for a Professor of Law and most recently, the Chief Judge of a municipal court.