eLessons Learned - Full Article

When Parties Fail to Cooperate During Discovery, Everybody Loses

It’s no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

In 150 Nassau Association, the parties could not agree on two issues regarding document production. The first issue involved the format of the documents requested by Nassau. Nassau made several document requests requiring RC Dolner to produce a set of documents in several formats. Following the final request, RC Dolner provided the documents in a searchable PDF format. At no point did Nassau make a request directly to RC Dolner for the documents in their native, or original, format. Instead, the first time Nassau made the specific request for native format was in its reply to its own motion to compel. Furthermore, Nassau admitted that the only reason they requested the documents in native format was for their own convenience in order to be able to use its own spreadsheet and accounting software. The trial court denied Nassau’s

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request, and the Appellate Division upheld the decision.

The second issue involved certain income tax records, which RC Dolner requested of Nassau. Nassau did not comply with the request, and the trial court denied RC Dolner’s motion to compel despite no substantive opposition from Nassau. The Appellate Division reversed the trial court holding that RC Dolner was entitled to the tax records in order to mount its defense.

The trial court’s reaction illustrates why parties engaged in eDiscovery should cooperate with each other. After submission of their dispute to the court, neither side received what they wanted. eDiscovery can be a complicated process, but some cooperation and negotiation can limit complexity and cost. The trial court’s decision to simply deny everybody’s request resulted in the need to go through the appeals process, costing both parties time and money.

Although the Appellate Division fixed the trial court’s decision and the parties did eventually reach a result both sides could live with, the same result could have been reached well before involving the courts. This case should serve as a lesson that courts will not treat kindly parties who cannot agree on rather simple eDiscovery requests. If Nassau wanted the documents in their native format for its own convenience, they should have made the request early in the discovery process.

eDiscovery requests can be complicated. With different formats, potentially prohibitive breadth, size and costs, and the possibility of revealing significant information, eDiscovery requests and responses can result in tense situations. Early cooperation can alleviate problems without needing to resort to the courts, where the risk of an adverse decision may be unacceptable and costly.


Marco Ferreira received a B.A. from Rutgers University (2009) and now attends Seton Hall University School of Law. He is a member of the Seton Hall Legislative Journal and will be published in the Seton Hall Health Law Outlook. Marco will receive his J.D. in 2013. Upon graduating, he will clerk for Judge Joseph Rea of the Superior Court of New Jersey, Law Division, for Middlesex County.



Comments (1):

  1. I completely agree. It is a waste of everyone’s time to make multiple requests for ediscovery in different formats. It should be thought through and properly requested the first time. And when in doubt, one should always request ediscovery in its native format.

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