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March 22, 2011 Practice Points

Recent Holding Shows Metadata Is "Intrinsic" to Electronic Production

By Kathryn Harris

On February 7, 2011, Judge Scheindlin of the U.S. District Court for the Southern District of New York confirmed that metadata is "intrinsic" to an electronic record being produced pursuant to Federal Rule of Civil Procedure 34 and is part of a public record as defined in the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). National Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, No. 10 Civ. 3488(SAS), 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011).

In National Day, the plaintiff requested that the defendants, four government agencies, produce documents under FOIA pertaining to U.S. Immigration and Customs Enforcement's Secure Communities program. In January 2011, the defendants produced a portion of the requested information. Upon receipt, the plaintiff asked the court for assistance, complaining that the production was in an unsearchable PDF format, stripped of all metadata, and indiscriminately combined paper and electronic records together in one PDF file.

The government contended that under FOIA, "metadata is substantive information that must be explicitly requested and then reviewed by an agency for possible exemptions," and if there is a conflict between the Rules and FOIA, FOIA trumps the Rules. The court strongly disagreed with these arguments, stating that "[b]y now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record." Id. at * 4. Moreover, "[r]egardless 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 twenty-first century." Id. at * 5.

Accordingly, the court ordered the defendants to reproduce all text records in static-imaged single file format together with their attachments—all spreadsheets in native format—and certain metadata. Id. To determine what metadata is intrinsic to an electronic record, the court stated that "metadata maintained by the agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not 'readily reproducible.'" Id. (emphasis in original). In addition, with regards to future productions, the court held that "it is no longer acceptable for any party, including the Government, to produce a significant collection of static images of ESI without accompanying load files." Id. at * 7. In conclusion, the court issued the following admonishment:

Once 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. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court.

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, and professors of law—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. Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication. Id. at * 8.

Kathryn Harris is with Cohen Kennedy Dowd & Quigley, PC in Phoenix, Arizona.

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