The opinion of the court was delivered by: Salas, United States Magistrate Judge
On April 3, 2009, this Court heard argument on various discovery disputes between Plaintiff/Counterclaim Defendant Ford Motor Company*fn1 and Defendant/Counterclaimant Edgewood Properties, Inc. The Court reserved on all of the issues and informed the parties that a written opinion would follow.
Before the Court are motions to compel by both Ford and Edgewood. There are five issues before the Court. First, Ford seeks to compel an affidavit from Edgewood of an employee of a former party to this case (which has settled), J&L Management. Second, Edgewood seeks confidential settlement communications between the New Jersey Department of Environmental Protection ("NJDEP") and Ford in a separate but related administrative proceeding. Third, Edgewood seeks that Ford's entire ESI production be re-produced in native format, as opposed to the format in which Ford produced the documents (TIFF). Fourth, Edgewood seeks to "confirm the adequacy of Ford's manual document collection process" [Dkt. 249] 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 Ford custodians. Finally, Edgewood seeks to compel a joint defense agreement between Ford and other parties in this litigation.
For the reasons set forth below, this Court holds that (1) Edgewood must produce the affidavit it has obtained from the former J&L employee; (2) the confidential settlement negotiations between Ford and NJDEP need not be disclosed because they are beyond the scope of relevance as provided by Fed. R. Civ. P. 26; (3) Edgewood is not entitled to an entire re-production of Ford's ESI in native format because the argument that Ford's production to date has been deficient has been waived; (4) Edgewood is not entitled to a newly constituted search of ESI from certain custodians it has identified; and (5) Ford need not disclose the joint defense agreement, but is ordered to disclose the parties to that agreement.
Accordingly, the motions to compel are granted in part, and denied in part.
The factual background underlying this litigation is well known to all the parties, is set forth in various opinions by the Honorable Harold A. Ackerman, U.S.D.J. and this Court, and need not be repeated here at length. See Ford Motor Co. v. Edgewood Properties, Inc., No. 06-1278, 2007 WL 4526594 (D.N.J. Dec. 18, 2007) (Ackerman, J.); 2008 WL 4559770 (D.N.J. Oct. 8, 2008) (Ackerman, J.); 2009 WL 150951 (D.N.J. Jan. 20, 2009) (Salas, J.).
Suffice it is to say that this case arises out of the demolition of a Ford assembly plant in Edison, New Jersey, and the distribution of contaminated concrete therefrom. Ford and Edgewood entered into a contract whereby Ford agreed to provide 50,000 cubic yards of concrete to Edgewood in exchange for Edgewood hauling it off the site. The concrete turned out to be contaminated, and so began this litigation, with Ford bringing the instant action against Edgewood asserting claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. ("CERCLA") and Section 58:10-23, 11f (a)(2) of the New Jersey Spill Act for contribution and indemnification for all costs as provided under the contract. Edgewood, in turn, counterclaimed against Ford, asserting breach of warranty, common law fraud, unjust enrichment, violation of the New Jersey Consumer Fraud Act, contractual indemnification and violations of the Spill Act. Edgewood sought to file an amended complaint, a motion which this Court granted in part and denied in part and is now the subject of a motion for reconsideration by Edgewood.
Turning to the matters at hand, in January 2009 the parties brought to this Court's attention various discovery disputes brewing between them. The parties worked diligently in paring down the disputes for this Court's consideration and for that the Court commends them. The five issues that remain will be discussed in turn.
The affidavit at issue contains testimony from Marvin L. Huffman, a J&L employee. It was procured by Edgewood and Ford seeks to compel its disclosure. Ford argues that the work product doctrine does not protect the affidavit from disclosure. It argues that recent cases have held that affidavits from third-party witnesses are not work product and must be disclosed. "[W]ithholding a third party affidavit as work product is at odds with the underlying aims of the work product doctrine itself . . ." (Joint Submission ("JS") at 5).
Edgewood responds that the affidavit is fact work product that was prepared in anticipation of litigation. Edgewood made a bit of a leap at the hearing and argued that because in preparing the affidavit counsel made strategic decisions and "cherry-picked" certain areas in which the affiant would testify, this reflected the mental impressions of counsel.*fn2 For the reasons stated below, the Court holds that the affidavit is purely factual in nature, and accepting Edgewood's argument would subvert the underlying purpose of the attorney work product doctrine.
Work product enjoys qualified immunity from discovery. Pursuant to Federal Rule of Civil Procedure 26(b)(3), work product includes: (1) "documents and tangible things," (2) "prepared in anticipation of litigation or for trial," (3) "by or for another party or by or for that other party's representative." The mental impressions, conclusions, or legal theories of a party's attorney enjoy absolute protection and disclosure cannot be compelled upon a showing of undue hardship. In re Cendant Corp. Litig., 343 F.3d 658, 662-63 (3d Cir. 2003). Underlying facts are not protected by the work product doctrine. See Stern v. O'Quinn, 253 F.R.D. 663, 686-87 (S.D. Fla. 2008). Of course, this does not mean that parties are generally entitled to documents which would ordinarily be considered work product that also happen to contain facts. Id. at 687.
The case of third-party affidavits made in anticipation of litigation or for trial presents a peculiar situation for courts because even though testimony is that of the affiant's, attorneys individually have a role in preparing affidavits of laypersons. This fact in itself does not suffice to convert what is otherwise purely factual testimony by an affiant into work product. Caselaw, the nature of testimony itself, and the underlying purposes of the work product doctrine compel this conclusion.
In Walker v. George Koch Sons, Inc., No. 07-274, 2008 U.S. Dist. LEXIS 81919 (S.D. Miss. Sept. 18, 2008), the court canvassed the caselaw with respect to the protection (but mostly, the lack thereof) of third-party witness affidavits under the work product doctrine. The court noted that the basis for plaintiff's assertion of privilege there was that counsel met with the affiants and then later drafted the affidavits for the witnesses, which they reviewed for accuracy, and signed them. "The Affidavits merely recite relevant facts within the affiants' personal knowledge rather than revealing an attorney's mental impressions or legal strategy." Id. at *17.
The fact that counsel prepared the affidavits, the court held, did not make them immune from disclosure. "An affidavit, after all, purports to be a statement of facts within the personal knowledge of the witness, and not an expression of the opinion of counsel." Id. at *18 (quoting Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 306-07 (E.D. Mich. 2000)) (emphasis added). Indeed, to demonstrate further why the J&L affidavit is not protected, the Infosystems court went even held that draft affidavits are not protected under the work product doctrine. Id. at 306.
One need not go as far as the Infosystems court's holding to conclude that the affidavit at issue here is not protected. After an in camera review of the affidavit, the court concludes that the affidavit contains a recitation of facts within the ken of the witness and does not contain the mental impressions or legal theories of counsel. Cf. Murphy v. Kmart Corp., No. 07-5080, 2009 WL 89687, at *9 (D.S.D. Jan. 9, 2009) (third-party witness statements did not reflect the legal strategies of counsel).
As to Edgewood's "cherry-picking" argument, the Court finds that this would amount to a wholesale expansion of the work-product doctrine that would subvert the underlying purposes of affording documents protection. Attorneys frequently work with witnesses to prepare their statements, and an attorney's choice to confine testimony to certain areas is inherent in their preparation. Expanding the doctrine in this area would render otherwise discoverable statements protected by the doctrine, the primary purpose of which is to protect counsel's trial strategies and mental impressions, not its choice as to an affiant's testimony of underlying facts. As one court has wisely held:
Granted, [Defendant] secured those statements in anticipation of litigation. However, if it now suggests that it may interpose the work product doctrine because it then put words in the mouths of those third-party affiants as part of its litigation strategy, it misperceives the nature of the doctrine. [Plaintiff] seeks no more than factual statements of these non-party witnesses. It should not be frustrated in its ability to test the perception and credibility of these persons.
Milwaukee Concrete Studios, Ltd. v. Greeley Ornamental Concrete Products, Inc., 140 F.R.D. 373, 379 (E.D. Wis. 1991).
Accordingly, Ford's motion to compel on this point is granted and Edgewood is ordered to ...