Cooperation: It’s Not Just for Grimm and Facciola

We read quite often about the opionions of the above two jurists but lest we think they are the only ones writing about cooperation, consider Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009). On it’s face, this a case where the lack of a timely objection to the format of production was found to be  a waiver of later objections. 

The specific facts were a lawsuit arising out of a dispute over removal of possibly contaminated concrete during the demolition of a Ford assembly plant in Edison, New Jersey. Edgewood had contracted with Ford to remove concrete from the site which later was revealed to be contaminated. Ford then filed suit under an indemnification clause in the contract.  During discovery, Edgewood asked Ford to produce documents in their native format with accompanying metadata. Ford objected and proffered TIFF files with searchable text. The parties never agreed on a production format and Edgewood delayed any formal objection for approximately eight months.

U.S. Magistrate Judge Esther Salas held that defendant had waived its right to seek production in native format by it;s delay in objecting to the TIFF format until after plaintiff had commenced a rolling production, specifically citing the process for resolving such disputed under Rule 34.

This case actually holds two admonitions beyond the the obvious lesson that counsel should know the rules of discovery, the first of which is that objections must be made in a timely fashion. Judge Grimm disucssed this in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008) where he held that knowledge of both the purpose and process of the FRCP is not an e-discovery issue but a discovery issue and is relevant regardless of forms of production. As Judge Salas noted in her opinion in Edgewood. , “The advent of E-Discovery does not serve to destroy parties’ discovery obligations that would exist in the ordinary course were other media involved.”

Secondly, Judge Salas then went on to reinforce the proposition of the Sedona Cooperation Proclamation   (SCP) by saying ” Parties would be best to heed the admonition of a recent court that “the best solution in the entire area of electronic discovery is cooperation among counsel.” ” More judges are referring to the SCP as a crucial part of their opinions even when the factual issue is on a specific point of contention.

The full opinion can be found at http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Ford%20Motor%20Co.doc

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