In Ford Motor Co., et. al. v. Edgewood Properties, Inc., 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009), U.S. Magistrate Judge Esther Salas, ruling on a number of discovery motions denied defendant's motion to compel plaintiffs to re-produce electronically stored information ("ESI") in its native format. In addition, the court denied defendant's request to run keyword searches against plaintiffs' ESI collection to verify the adequacy of plaintiffs collection efforts.

The case is predicated on Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claims arising from the demolition of a Ford assembly plant in Edison, New Jersey and resulting distribution of contaminated concrete that defendant hauled away under its contractual obligation with Plaintiffs.

In its initial document production defendant sought all responsive information in its native format (or documents containing metadata) as authorized under FRCP 34.  In turn, plaintiffs sought production in Tagged Image File Format ("TIFF") with accompanying searchable text.  The court, citing The Sedona Conference Principle 12, acknowledged that the requesting party should produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate.  The court found that both parties failed to adequately meet and confer and never came to agreement on the form of production.  Accordingly, the court found that defendant's nearly 10-month delay before objecting to the form of production related to three separate "rolling" electronic document productions was "patently unreasonable."  The court further found that "this entire problem could have been avoided had there been an explicit agreement between the parties as to production, but as that ship has sailed, it is without question unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection." (Emphasis in original)

Defendant also moved for an order permitting defendant's e-discovery vendor to verify the adequacy of plaintiffs' manual ESI collection by performing keyword searches on plaintiffs' ESI as it was stored in their original locations (e.g., a custodian's laptop, Plaintiffs' servers, etc.).  While the court, citing The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, agreed that a fully automated search may have been more appropriate than plaintiffs' wholly manual effort, a meet and confer session at the outset as to the mode and efficiency of collection would have been a more appropriate solution.  The court held that consistent with Sedona Principle 6, plaintiffs were in the best position to choose the appropriate method of searching and culling its data.  "[A]bsent an agreement or timely objection, the choice is clearly within the producing party's sound discretion."  Moreover, the court ruled that "reinventing the wheel" would be unduly burdensome under FRCP 26(b)(2)(C)(i). 

The court was not swayed by what it called "conclusory allegation premised on nefarious speculation", holding that defendant had not made a colorable showing that plaintiffs purposefully (or even negligently) withheld documents.  The court stated that there were less intrusive (and expensive) alternatives (e.g., depositions) to determine the efficiency of plaintiffs' document collection.  "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."