Judge Scheindlin, author of the landmark Zubulake decisions and last year’s Pension Committee opinion, has issued a new e-discovery opinion, this time addressing metadata. In National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency1(NDLON), Judge Scheindlin finds as a matter of first impression that metadata, data about data, is an integral part of the electronic record and should be included when electronically stored information (ESI) is produced in response to a Freedom of Information Act (FOIA) request. Judge Scheindlin goes on to list which metadata fields she feels are necessary in the production of varying forms of electronic records, and closes with a call for increased cooperation among counsel in all discovery matters.

FOIA and the Federal Rules

In NDLON, originally handed down on February 3, and then reissued with corrections on February 7, the plaintiffs sent a 21-page FOIA request to each of the defendant agencies. Eventually, the government produced certain documents, although they were produced in unsearchable PDF format, with electronic records stripped of metadata, and with the paper and electronic records indiscriminately merged together into one PDF file. The plaintiffs sought the court’s assistance in obtaining a revised production from the government.

In a matter of first impression, Judge Scheindlin held that the federal government must include metadata in FOIA productions, and that certain metadata fields are an “integral part” of the public record. The court also discussed load files for litigation databases, quoting the Sedona Conference definition, and held that “when a collection of static images are produced, load files must also be produced in order to make the production searchable and therefore reasonably usable” to the requesting party.

Finding no conflict between the FOIA and Federal Rule of Civil Procedure 34, the court stated that “Rule 34 surely should inform highly experienced litigators as to what is expected of them when making a document production in the twenty-first century.” Accordingly, the court looked both to FOIA and the Federal Rules in granting relief. But because plaintiffs did not explicitly list metadata in their document request, Judge Scheindlin limited the scope of what the government was required to do in reproducing the documents. Like Judge Rosenthal in the Rimkus decision,2 Judge Scheindlin emphasized proportionality in electronic discovery, stating that what is reasonable and proportional will vary depending on the case, and, the court “will not impose any greater burden on the Defendants than is absolutely necessary to conduct an efficient review.” (Read V&E’s summary of the Rimkus decision.) The court also observed that discovery “do-overs” often result in cost-shifting but it would not be ordered in this case given the defendants’ complete failure to comply with the plaintiffs’ minimal production requests.

via Leading E-Discovery Judge Orders Production of Metadata Under FOIA and Outlines Basic Metadata Requirements for All ESI Productions.