A recent case addressed two important issues concerning the format for production of electronic documents and the showing necessary for a party to subject another party to intrusive tests by a third-party vendor to assess the completeness of a prior production.
Ford Motor Co. v. Edgewood Properties, Inc., -- F. Supp. 2d --, 2009 WL 1416223 (D.N.J. May 19, 2009) (click here), arose out of the demolition of an automotive assembly plant and the distribution of contaminated concrete from the plant. Among other things, the defendant sought an order compelling plaintiff to reproduce its entire ESI production in native format, rather than in the format previously produced. Defendant also sought to “confirm the adequacy of Ford's manual document collection process by using a third-party vendor to perform keyword searches on documents not in the existing repository of ESI, but instead, documents within the possession of certain ... custodians." Id. at *1.
With respect to the format of the production, the defendant requested in its initial document request that plaintiff produce documents in native format; however, in responding, the plaintiff stated instead that it would produce electronically stored information in TIFF format with accompanying searchable text, but not in native format. See id. at *5. The parties apparently never reached an agreement as to how the documents would be produced, so plaintiff "unilaterally adopted its own objection and produced them in TIFF format." Id. Referencing the Sedona Principles, the court looked to the fact that the defendant failed to object to the TIFF format production until about eight months after the production - a delay that the court found "patently unreasonable," particularly in light of the fact that the production was long since complete. Id. at *7. The court therefore denied the defendant's request on the grounds that it would be "unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection." Id. at *8.
As to the second issue, regarding defendant's desire to require the plaintiff to permit a third-party vendor to perform random searches in various custodian electronic files, the court denied that request, as well. The defendant argued that there was a suspicious absence of certain types of documents in the production made by the plaintiff, and posited that the document collection method used by the plaintiff must have been flawed. To test that hypothesis, the defendant proposed having a vendor randomly search through electronic files for various employees of the plaintiff to see if responsive documents existed that were not produced. Looking again to the Sedona Princples, the court noted that the producing party ordinarily "is the best position to determine the method by which they will collect documents," and that "the choice is clearly within the producing party's sound discretion." Id.at *9. Because the defendant's suspicions about missing documents was nothing more than "conclusory allegation premised on nefarious speculation ," id., the court denied the request. "The 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 document collection efforts anew." Id. "To 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 (especially in a document-heavy case such as this) in the face of mere accusation to rebut a claim of withholding. This scenario is not contemplated by the Federal Rules." Id.
So the lessons here are (1) if you're going to insist on a particular format for production of documents by the other side, you'd better actually insist upon it from the start, and (2) although the electronic discovery rules typically extend the volume of discovery in many cases, they are not a license to conduct fishing expeditions based on nothing more than a hunch that there's dirt that has not yet been uncovered.
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