Last month, Judge Shira A. Scheindlin of the Southern District of New York took yet another step in advancing e-discovery jurisprudence by ruling that metadata (that is, “data about data” which is often hidden from plain view) must be produced by the United States Government as part of its electronic records, in a usable format, when responding to requests under the Freedom of Information Act (“FOIA”). National Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 2011 WL 381625, at * 5 (S.D.N.Y. Feb. 7, 2011). This is the first federal court to have issued such a ruling. The decision highlights the increasing scrutiny courts are paying to the production of metadata and the provision of electronic documents in a usable format.

Background – Unclear and Unfulfilled Requests

Plaintiffs submitted identical FOIA requests to four governmental agencies asking for information pertaining to Secure Communities, a program that enlists the help of states and localities in enforcing federal immigration law. Id. at *1. After a minimal substantive response from the Government, Plaintiffs submitted a shortened request, requiring production of specific documents on an expedited basis. Id. Plaintiffs asked the Government to produce responsive records on a CD, to provide each document as a separate file, and with Excel documents in native format. Id.

After receiving an incomplete and tardy response to this abbreviated request, Plaintiffs moved to compel the production of documents. Id. The court ordered the Government to produce certain key records within three months. Id. Plaintiffs then sent the Government a Proposed Protocol Governing the Production of Records (“Proposed Protocol”), specifically requesting load files and metadata fields. Id. at *2. The Government subsequently produced five, unsearchable PDF files, consisting of an undifferentiated mix of electronic and hard-copy documents, without load files or metadata fields. Id. Plaintiffs found the production unusable and moved the court to order the Government to provide the records per the Proposed Protocol. Id. The Government defended its January 12 production, faulting Plaintiffs’ failure to make a timely or explicit request for metadata and arguing that its production was sufficient because governmental disclosure under FOIA is not subject to the federal rules governing document discovery. Id. at *5.

ESI Treatment Under FOIA Similar To Rule 34

Judge Scheindlin dismissed the Government’s timeliness defense as a “lame excuse for failing to produce the records in a usable format.” Id. at *4. The court noted that Plaintiffs’ email months earlier — requesting spreadsheets in native format and asking that each text record be produced as a separate file — sufficiently notified the Government of the form of production. Id. Instead of properly fulfilling Plaintiffs’ requests, the Government not only failed to produce the records in a usable form, but actually provided records in a manner that was burdensome for Plaintiffs to use. Id. Judge Scheindlin also criticized the Government’s failure to contact Plaintiffs concerning the method of production, observing that, “any ambiguity as to the nature of the requested format would have been resolved” if they had done so. Id. Indeed, a major refrain of the National Day Laborer decision is that parties must cooperate and use common sense when ESI discovery disputes arise. Id. at *8.

Judge Scheindlin explained that the underlying goals of the Federal Rules and FOIA are the same and “common sense dictates that the parties incorporate the spirit if not the letter, of the discovery rules in the course of FOIA litigation.” Id. at *5 n.33. The Government defended its production on the grounds that metadata had not been recognized as an integral part of an electronic record for FOIA purposes and, as such, metadata are separate records that Plaintiffs failed to request. Id. at *5. Responding to that argument, and recognizing that she was applying federal civil discovery rules to a statutory scheme that is silent on these issues, Judge Scheindlin wrote that “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.” Id. Judge Scheindlin then explicitly held “that certain metadata is an integral or intrinsic part of an electronic record. As a result, such metadata is ‘readily reproducible’ in the FOIA context.” Id. Aware that the same metadata may not be available for all types of electronic records, Judge Scheindlin offered the following rule-of-thumb: “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrated that such metadata is not ‘readily reproducible.’” Id.

Finally, Judge Scheindlin addressed the Government’s failure to produce properly separated documents with an associated load file. Id. at *7. Even if production formation was not specifically demanded as part of a FOIA request, the production of static images of ESI without “any means of permitting the use of electronic search tools is an inappropriate downgrading of ESI.” Id. Judge Scheindlin noted the production was deficient precisely because Plaintiffs had no way of using an electronic search tool to review the material — the records had no metadata and were “lumped” together in five large PDF files. Id.

Far from simply outlining the general production protocol, Judge Scheindlin next furnished a blueprint for the Government’s ESI productions. She listed by name twenty-three specific metadata fields that the Government is required to include in its future productions, such as “Source Path” and “Modified Date”. Id. at *6-7. These fields “are the minimum fields of metadata that should accompany any production of a significant collection of ESI.” Id. at *6 n.41, *7 n.41 (emphasis in original).

Judge Scheindlin pointed out, however, that she was not suggesting that this protocol “should be used as a standard production protocol in all cases” and that static images may be appropriate for smaller productions.

In reaching her conclusions, Judge Scheindlin attempted to set a universal rule of thumb for parties everywhere. She wrote, “it is no longer acceptable for any party, including the Government, to produce a significant collection of static images of ESI without the accompanying load files.” Id. Moreover, the court also admonished the parties for bringing issues before that court 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.” Id. at *8.

Conclusion

On a basic level, the National Day Laborer case clarifies the Government’s document production obligations under FOIA. The larger picture, however, is the practical ESI discovery guidance provided by Judge Scheindlin as to the types of metadata that typically ought to be provided in any large document production, regardless of the underlying rules, as well as the need to produce ESI in a reasonably usable format. National Day Laborer’s guidelines promise to facilitate the production of usable ESI in a variety of contexts and to encourage parties to cooperate before bringing discovery disputes to the court.