Case Law: Nat’l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency

Judge Scheindlin Orders Production of Metadata under FOIA and Demands Cooperation

Nat’l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). In this Freedom of Information Act (FOIA) litigation, the plaintiffs sought to obtain records in a usable format from four government agencies that the plaintiffs’ alleged had produced data consisting of electronic text records, e-mails, spreadsheets and paper records, in an unsearchable PDF format, stripped of all metadata and indiscriminately merged together in one PDF file. Determining the defendants’ production did not comply with FOIA or Fed.R.Civ.P. 34, Judge Scheindlin remarked that “regardless of whether FOIA requests are subject to the same rules governing discovery requests, 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.” Citing to Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, in addition to three state court decisions, Judge Scheindlin held that certain metadata is intrinsic to the electronic record. Accordingly, the Judge determined that parties may no longer produce a significant collection of static images of ESI without accompanying load files. In addition, “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’” After ordering a detailed protocol for the defendants’ production and specifying the minimum metadata fields that must be included, the court concluded by commenting that the whole discovery issue could have been avoided “through cooperation and communication.”

Commentary

In this case of first impression, Judge Scheindlin issued yet another ground-breaking ruling by ordering the government to produce metadata associated with ESI pursuant to a request under FOIA. In so holding, Judge Scheindlin referenced Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security – a decision issued by Magistrate Judge Frank Maas (also of the Southern District of New York). Judge Scheindlin refers to this opinion as a “guidebook” that explains metadata and acknowledges that “[M]etadata is not addressed directly in the Federal Rules of Civil Procedure but is subject to the general rules of discovery. Metadata is thus discoverable if it is relevant to the claim or defense of any party and is not privileged."

Judge Scheindlin also referenced a series of three state court decisions which held that metadata is a part of a public record and must be disclosed pursuant to a public records request. These three decisions also generated a notable amount of discussion when they were issued, and include Irwin v. Onondaga Cnty. Res. Recovery Agency, O’Neill v. City of Shoreline and Lake v. City of Phoenix

In addition to holding that metadata is an intrinsic component of an electronic record, Judge Scheindlin concluded her opinion with a call for cooperation, noting that “[O]nce again, this Court is required to rule on an ediscovery 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 production format. These closing remarks highlighted the growing frustration within the courts regarding parties who fail to undertake a good-faith effort in cooperation and participation in the mandated Rule 26(f) meet and confer conference. Judge Scheindlin made a final closing remark noting that “[L]awyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation” but that the expense could be avoided or at least decreased if the lawyers engaged in cooperation and communication to ensure they meet their obligations as expeditiously and inexpensively as possible.