United States District Judge Shira Scheindlin in Manhattan's federal court has been as one of the leading lights in the federal judiciary in the field of electronic discovery since her landmark Zubulake v. UBS decisions in 2003 and 2004. This year, Judge Scheindlin rendered another decision that may have a similar important impact on eDiscovery practice in federal and state courts around the country: National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). For a copy of the case, click here.
This case follows on the heels of the e-discovery decision from Judge Scheindlin that I covered last year, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). Although not binding on federal or state courts in this area, Judge Scheindlin’s opinions are well respected and have influenced judges throughout the country.
Plaintiff National Day Laborer Organizing Network (“NDLON”) is an advocacy group for day laborers around the country. The organization sought documents relating to the “Secure Communities” program established by the Immigration and Customs Enforcement Agency (“ICE”) and the U.S. Department of Justice. The Secure Communities program seeks to engage state and local governments in the enforcement of federal immigration law.
Strictly speaking, the NDLON case did not raise issues under Federal Rule of Civil Procedure 34 and its procedures for the discovery of electronically stored information. In that sense, the case did not have to become an e-discovery case. NDLON filed the case under the Freedom of Information Act (FOIA) to obtain records from four government agencies, and FOIA requests are not the same thing as Rule 34 discovery requests.
Although the question of what the government must produce under FOIA is different from what a party must produce under Rule 34, Judge Scheindlin ruled that Rule 34 “informs” the analysis of what is expected when a litigant makes a “document production in the twenty-first century.” Id. at *5. Thus, the Court looked to what parties must do under Rule 34 to provide e-discovery in order to help it decide a question of what the government must do under FOIA.# In this way, Judge Scheindlin madeNDLON into an e-discovery case.
The dispute before the Court concerned the government’s production of electronically stored information (“ESI”). The production raised three issues. First, NDLON complained about the government’s production, because it requested the ESI in native file format, but the government produced it in an unsearchable pdf format. Second, by providing the ESI in this format, the government failed to produce the metadata associated with the requested ESI. Third, NDLON complained that the government lumped the various documents in ESI form into one pdf file, forcing the organization to figure out where each document began and where it ended. NDLON offered to discuss any issues the government had concerning the production, but the government ignored the organization’s invitation.
The Court ruled in favor of NDLON. Regarding the first complaint, the Court ruled that it was inappropriate for the government to produce static images of documents stripped of all metadata in response to a request for ESI in native format. The Court called it “an inappropriate downgrading of the ESI.” Id. at *7. Without native files or load files, static images are not searchable and therefore not reasonably usable.
The Court also ruled in favor of NDLON on the second issue, and held that the organization was entitled to metadata associated with the ESI. The government’s production of static images without metadata was therefore in violation of Rule 34 (and thus FOIA). The Court said, “By now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of the electronic record.” Id. at *3.
Finally, the Court held that the government violated Rule 34 by producing the ESI in a single pdf. The form of production made it more difficult or burdensome for NDLON to use the information efficiently. Lumping the ESI together in a single file was therefore inappropriate.
While all of the Court’s rulings seem like common sense, my conversations with practitioners around the country suggest otherwise. I am hearing anecdotes about producing parties routinely producing static images without metadata in response to (properly made) requests for ESI in native file formats and metadata. These producing parties are taking the position that they have no obligation to provide ESI in native file format and the requesting parties are not entitled to metadata. The NDLON case makes that position untenable in the Southern District of New York, and counsel should be aware that they are taking a risk in adhering to that position elsewhere.
Finally, the Court emphasized the importance of attorney cooperation on e-discovery issues. Judge Scheindlin lamented that the parties could have avoided the dispute in the case if they “had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’” to resolve the form of production issue. Id. at *8. The judge had harsh words for the parties: “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.” Id.# The Court concluded that litigants need to try harder to comply with courts’ expectations. Id.
Unfortunately, the duty of counsel to cooperate with each other on e-discovery matters seems to be controversial among many practitioners. Again, anecdotes from other practitioners suggest that many “highly respected private lawyers,” resist any forms of cooperation, despite the mounting weight of case law in “opinion after opinion.” Id. These practitioners may end up paying the consequences when they end up in front of judges increasingly impatient with attorney stonewalling.
Partner, Cooke Kobrick & Wu LLP
# “[C]ourts have not addressed the . . . question of whether the discovery rules govern FOIA productions,” according to Judge Scheindlin. Id. at *5 n.33. “Nonetheless, because the fundamental goal underlying both the statutory provisions and the Federal Rules is the same—i.e. to facilitate the exchange of information in an expeditious and just manner—common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation.” Id.
# The court was referring to the words “meet and confer,” “cooperate,” and “communicate.”