Scheindlin puts a chill into ICE's e-discovery practices, ordering inclusion of metadata in government FOIA productions
As the nation plows through the endless days of cold and ice in the winter of 2011, pioneering e-discovery federal judge Shira A. Scheindlin of the Southern District of New York has turned the heat on another litigant, this time the federal agency that calls itself ICE.
The new lesson Scheindlin has taught in her ongoing e-discovery classroom is that in complying with requests for public information under the federal Freedom of Information Act (FOIA), the U.S. Immigration and Customs Enforcement Agency (ICE) may not produce the data, which in this FOIA request amounted to thousands of pages, in unsearchable PDF form stripped of relevant metadata.
Scheindlin breaks ground with metadata
The Scheindlin opinion once again pushes the envelope in e-discovery jurisprudence, joining her prior, well-known decisions in the popularly-named Zubulake and Pension Committee opinions. Scheindlin’s list of e-discovery cases now includes National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, which breaks ground by its requirement that federal FOIA productions must be accompanied by metadata.
Various advocacy groups had sued ICE and three other government agencies seeking records under FOIA. The judge found that apart from making only a partial responsive production of less than 3,000 pages, the government had also stripped all the metadata and merged paper and electronic records indiscriminately.
In her Feb. 7 ruling, the judge ordered the government to produce metadata, and stressed that cooperation and communication among counsel – government and non-government – is critical to reach early agreement on the form of production for pertinent ESI.
"Good sense" and "greater efforts" needed to meet expectations
Scheindlin bemoaned that “(o)nce again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced…. While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers – even highly respected private lawyers, government lawyers,... – need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.”
Anthony Diana, of Mayer Brown, in New York, lawyer for one of the advocacy groups, declined comment.
Requiring metadata in FOIA productions could have major implications for government information preservation practices. The metadata in a digital government document would become part of court record in litigation leaving inconvenient gaps and gaffes for government judicial combatants.
"This decision comes on the heels of decisions of the Washington and Arizona Supreme Courts that both held the same way concerning metadata and those states’ public records laws,” said Seth Row, an e-discovery attorney who is counsel at Parsons Farnell, LLP in Portland, Oregon.
“When you read these three cases together, they put the nail in the coffin of the idea that metadata lacks relevance, and therefore doesn’t need to be produced. The cases show that if you’re dealing with public records, you do not have to specifically request metadata to get it,” he added.
Metadata adds cost and value
In civil litigation where the government is not a party, however, metadata is not automatically granted and must be requested.
Producing metadata can incur costs because it requires a load file, which inputs the collected data into a document review program. Costs increase more as software tools, review programs, and personnel to review and manage become involved. The usual result, however, is a more accurate and time-efficient search of ESI.
“Some say metadata is too expensive to review, and shouldn’t have to be produced. What this case shows is that’s not a good reason because it degrades the functionality and usability of the document,” said Row.
“Unless the dollar value of the review is high and the value of the case is low, we are going to have to process data in every case, even small cases,” he concluded.
