What you need to know

On June 17, Judge Scheindlin withdrew her February ruling ordering the production of metadata by the US Government as “an integral part of an electronic record.”

What you need to do

Notwithstanding Judge Scheindlin’s recent retraction, companies still should expect that they may be required to produce metadata in civil proceedings, and that the production of metadata cannot be used as a bargaining chip to extract concessions in discovery or as an opportunity for procedural gamesmanship.

In February of this year, Judge Shira Scheindlin of the Southern District of New York—famous for authoring several landmark decisions in the area of e-discovery, including the seminal Zubulake and Pension Committee decisions—issued a 26 page opinion ordering the United States Government to produce various categories of metadata in response to requests received under the Freedom of Information Act.  Judge Scheindlin’s decision in National Day Laborer Organizing Network v. Customs Enforcement Agency held, in part, that metadata is “generally considered to be an integral part of an electronic record,” and “presumptively producible” under FOIA.

On June 17, Judge Scheindlin issued another order in the same case withdrawing her February ruling, stating that “it is the intent of this Court that the [February] decision shall have no precedential value in this lawsuit or in any other lawsuit.”

Judge Scheindlin’s withdrawal of her prior ruling in National Day Laborer highlights the fact that the production of metadata in discovery remains complicated.  It does not mean, for example, that the production of metadata is never required.  Whether an obligation to produce metadata exists depends on the particular circumstances of the case, including the nature of the specific litigation (i.e., civil litigation as opposed to litigation concerning state or federal freedom of information statutes), the jurisdiction in which the litigation takes place, the discovery requests that have been received and the agreements of the parties concerning e-discovery.

Background of the Case

In National Day Laborer, Plaintiffs brought an action to compel Defendants, four federal agencies, to comply with the Plaintiffs’ FOIA requests.  A dispute arose regarding the format of the Defendants’ document production, and, in particular, whether the Defendants had an obligation to produce metadata under FOIA.

The Plaintiffs had three specific complaints about the Defendants’ production of electronic information:

  • the documents were produced in an unsearchable PDF format;
  • no metadata associated with the documents was produced (for example, it was not possible to identify the custodian of each document or “parent-child” attachment relationships); and
  • the documents all were merged into five large PDF files, making it difficult to determine whether the information produced came from separate files.

The February Ruling

Judge Scheindlin first considered the Defendants’ argument that the production requirements under FOIA were different and much narrower than those under Rule 34 of the Federal Rules of Civil Procedure.  Rejecting the argument, Judge Scheindlin held that “[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 the twenty-first century.”

Turning to the issue of metadata production, and relying on case law dealing with discovery in “regular” litigation governed by the FRCP, Judge Scheindlin held that “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.”  Therefore, as a matter of first impression in the FOIA context, the court found 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.’”  She also explained that, even if metadata has not been specifically requested, the “production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading” of the electronic information and, therefore, is unacceptable.  Judge Scheindlin did observe, however, that in some cases involving small document volumes where an electronic review platform is not likely to be used, the production of individual static images, without the accompanying metadata, still may be deemed reasonable.

Judge Scheindlin’s February ruling further specified the “minimum fields of metadata that should accompany any production of a significant collection” of electronic data.  She emphasized, however, that the question of precisely which metadata fields must be produced should be determined on a case-by-case basis.

Judge Scheindlin also admonished the parties and their attorneys in her ruling for their lack of communication and cooperation, emphasizing that the entire dispute could have been avoided had the parties made reasonable efforts to “meet and confer” regarding the form of production of electronic information.

Although the National Day Laborer case was limited, on its facts, to the government’s production of information under FOIA, Judge Scheindlin’s ruling sent a clear message to all litigants—that they cannot use the production of metadata as a bargaining chip in discovery or as an opportunity for procedural gamesmanship.  Judge Scheindlin’s ruling also has been widely viewed as a warning that parties generally have an obligation to produce metadata in discovery, and that they may not inappropriately downgrade electronic information by stripping it of all metadata or by converting it to an unsearchable form.

The June 17 Ruling

The Defendant government agencies appealed Judge Scheindlin’s February 2011 ruling.  Before their appeal was resolved on the merits, however, Judge Scheindlin issued a one paragraph order, in which she withdrew her February ruling, explaining that, “as subsequent submissions have shown, that decision was not based on a full and developed record.”  She further stated that “[b]y withdrawing the [February] decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or any other lawsuit.”   No further explanation for the withdrawal was provided by the Court.

Impact of Judge Scheindlin’s Rulings in National Day Laborer

Following Judge Scheindlin’s retraction of her February ruling, the question of whether the government is obligated to produce metadata in response to FOIA requests remains open (or, more precisely, has been re-opened).

As for “regular” discovery governed by the Federal Rules of Civil Procedure, Judge Scheindlin’s retraction has a less significant impact.  Various federal court decisions in recent years (several are cited in Judge Scheindlin’s February ruling) explicitly have held that metadata is part of an electronic record, and thus should be produced by parties to civil litigation.  Relying on these cases—and notwithstanding Judge Scheindlin’s recent retraction—parties still can expect and demand the production of metadata in civil litigation.  The exact scope of the obligation to produce metadata in civil proceedings, however, likely will continue to be resolved on a case-by-case basis, and also may vary from jurisdiction to jurisdiction.

Lastly, despite Judge Scheindlin’s admonition that her February ruling “shall have no precedential value,” it is expected that parties will continue to rely on the list of “minimum fields of metadata” described in that decision to support the argument that their opponents have not met their obligations with respect to the production of metadata in particular cases.