Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009)
This lawsuit arose out of the distribution of contaminated concrete following the demolition of a Ford assembly plant in Edison, New Jersey. Edgewood entered into a contract with Ford to haul 50,000 cubic yards of concrete from that site which turned out to be contaminated. Ford then brought a claim against Edgewood under CERCLA and the New Jersey Spill Act for contribution and indemnification of all costs as provided under the contract.
In discovery, Edgewood demanded that Ford produce documents in their native format with accompanying metadata. Ford objected and affirmatively indicated that it would produce documents in a tagged image file format (“TIFF”) with accompanying searchable text. Apparently, the parties never agreed on a production format, and Edgewood waited approximately eight months before objecting to Ford’s production. It then waited two additional months to bring their objection to the court’s attention. This delay led the court to conclude that Edgewood had waived any objection to Ford’s production format.
Because the production of electronically stored information (ESI) can occur in various formats, Rule 34 sets up a process through which parties are supposed to resolve disputes over production. Rule 34 requires the parties to dance with one another – the requesting party specifies the format to produce the ESI, the producing party can agree or object and must then indicate the format in which it will produce the ESI, and where the parties cannot agree on a production format they are to let the court decide. We refer to it as Rule 34’s “cha-cha.” Rule 34’s dance is supposed to occur before any production occurs, and Edgewood Properties demonstrates that any misstep with Rule 34’s requirements can result in you stepping on your partner’s toes. The rule is not difficult to follow, but like high school freshmen, many parties appear reluctant to get involved in the dance.Leave a Comment »