As discussed in our April Electronic Discovery Update, Judge Shira Scheindlin took a novel approach to governmental disclosure by proclaiming that the Freedom of Information Act (“FIOA”) requires production of various metadata because metadata is an intrinsic part of an electronic record. Nat’l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y., Feb. 7, 2011); SDNY Ruling Requires Government to Produce Metadata in Response to FOIA Requests, Electronic Discovery Update, Apr. 2011, available at http://www.kramerlevin.com. However, in June 2011, Judge Scheindlin withdrew her decision “because, as subsequent submissions have shown, that decision was not based on a full and developed record.” Order Withdrawing Opinion Issued February 7, 2011 (“June Order”). As the Defendants pointed out, “the Court never received formal briefing on the issue — only an exchange of pre-motion conference letters — and no factual record was developed prior to the ruling.” Memorandum of Law in Support of Motion by the Government for a Stay Pending Appellate Review of the Order Dated February 7, 2011, and the Court’s Supplemental Order Dated February 14, 2011 (“Def. Br.”) at 1. Judge Scheindlin further wrote that it was “the intent of [the] Court that the [February] decision shall have no precedential value.” June Order. Prior to the withdrawal of the opinion, Defendants had filed an appeal with the Second Circuit, but have since withdrawn it. Notwithstanding the withdrawal of the decision, Judge Scheindlin’s February opinion and the appeals process it triggered offer insights into e-discovery production obligations of parties involved in a civil litigation in the Southern District of New York.

Decision Below

The plaintiffs in Nat’l Day Laborer sought relief from the court after the defendant government agencies responded to their FOIA requests by producing, without metadata or load files, unsearchable PDF files consisting of an undifferentiated mix of electronic and hard-copy documents. Nat’l Day Laborer, 2011 WL 381625, at *2. During a February 14, 2011 conference with the court, the Defendants pointed out the lack of controlling precedent on the issue of what, if any, metadata is required when responding to a FOIA request. Transcript of February 14, 2011 Conference with the court (“Feb. 14 Conf.”) at 13. In an issue the court described as “juicy,” Judge Scheindlin responded, “That’s right. You hit the mark. There is no controlling precedent. Somebody is going to have to explain this.” Id. at 7, 13-14.

In order to do so, the court turned to Rule 34 of the Federal Rules of Civil Procedure (“Rule 34”), which governs production of ESI in federal civil litigation. Nat’l Day Laborer, 2011 WL 381625, at *5-7. Judge Scheindlin opined 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” and provided a list of the “minimum fields of metadata that should accompany any production of a significant collection of ESI.” Id. at *5. Judge Scheindlin explicitly held that “metadata maintained by [a governmental] agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrated that such metadata is not ‘readily reproducible.’” Nat’l Day Laborer, 2011 WL 381625, at *5.

Government Appeal

The Government appealed the court’s February order and concurrently filed a motion with the district court to stay the order pending appellate review. Notice of Appeal Feb. 23, 2011; Motion to Stay Pending Appeal of Opinion and Order Dated February 7, 2011. The thrust of the Government’s argument against the February order, as articulated in its Motion for Stay, was three-fold: (i) proper procedure was not followed by the Plaintiffs or the Court; (ii) in this case, metadata is not readily reproducible; and (iii) FOIA and Rule 34 do not create analogous discovery responsibilities. Def. Br. at 11-22.

The Government argued that Plaintiffs did not, as required by FOIA, exhaust all administrative remedies before seeking redress from the Court and that they impermissibly expanded their FOIA request after the defendant agencies had responded. Id. at 11-12. The Government further argued that the Court’s decision amounted to summary judgment because, “at bottom, a ruling against the Government on that issue constitutes a dispositive finding that the Government did not adhere to its FOIA obligations.” Id. at 17. As such, it argued the February order was inconsistent with Federal Rule of Civil Procedure 56(f), which directs courts to give parties notice and time to respond if it seeks to grant summary judgment for a non-movant, which the Nat’l Day Laborer court did not do. Id. at 16.

In fact, the court twice denied the Government’s request for full motion practice on the issue of metadata reproducibility, which it further cited as error. Id. at 14. The Government went on to argue that whether records are “readily reproducible” is an issue of fact and the court erred by deeming records “presumptively readily producible” as it impermissibly transformed the inquiry into a matter of law. Defendants Reply Memorandum of Law in Further Support of the Government’s Motion for a Stay Pending Appellate Review of the Order Dated February 7, 2011, and the Court’s Supplemental Order Dated February 14, 2011 (“Reply”) at 6-7 (emphasis added). During any such factual inquiry, a court must give substantial weight to the agency responding to the FOIA request concerning the reproducibility of requested records. Def. Br. at 13. The Government argued that because it had not been allowed to brief the issue, it was not allowed to submit affidavits concerning the producibility of certain metadata and accordingly, its opinions were given no weight. Id. at 14.

The Government asserted that, had it briefed the issue, it would have submitted affidavits showing that the requested metadata is not readily reproducible. Id. As an initial matter, there are significant technological barriers to governmental agencies responding to FOIA requests in the same manner as civil litigants, especially considering the sheer volume of FOIA requests per year — more than 162,000 in 2010 for the five defendant agencies. Def. Br. at 14; Reply at 10. Also, many of the FOIA offices involved in Nat’l Day Laborer simply could not comply with the February order because the in-house software used to respond to FOIA requests do not generate load files — an issue specifically highlighted by the court as being an “inappropriate downgrading of ESI.” Def. Br. at 14; Nat’l Day Laborer, 2011 WL 381625, at *6 n.41. The court also required that records be produced in a format compatible with Concordance 8x and Opticon 3x, but multiple FOIA offices do not possess or have the ability to produce files compatible with those programs. Def. Br. at 15. The Government also noted that the court ordered the native production of Excel files, which cannot be redacted and are therefore not readily reproducible. Id. One last example of technical difficulty cited by the Government is that if certain metadata fields themselves are not subject to a FOIA request, the agencies would be required to manually redact non-producible metadata fields (a process that cannot be automated), which would add significant cost and delay to the process of responding to any given FOIA request. Id. at 14.

In addition to stressing the technical difficulties agencies responding to a FOIA request would face, the Government also highlighted that Rule 34 governs discovery during litigation and a FOIA request is a pre-litigation administrative proceeding, and stressed there is a fundamental difference between discovery obligations for litigators as compared to administrators. Id. at 18. Essentially, the Government argued its obligations are governed by statute and not the Federal Rules, such that Rule 34 “has little bearing when applied to the obligations of FOIA administrators.” Id. at 16. Furthermore, Rule 34 governs disclosure between individual litigants whose productions can be made subject to a claw-back or confidentiality stipulation; those same protections are unavailable to governmental agencies because records released pursuant to a FOIA request are released to the public at large. Id. And because FOIA applies solely to “records,” requiring an “all records” request to include metadata would, by definition, make metadata itself a record, requiring an agency to search, process and produce every iteration of a document that has different metadata — something Rule 34 does not require. Id. at 21.

Lessons for Civil Litigants

Interestingly, Judge Scheindlin withdrew her opinion based on a lack of a “full and developed record,” not based on an interpretation of law. This means that her analysis may well forecast future opinions concerning discovery disputes involving ESI and metadata under Rule 34. In addition to providing litigants with the verbal tools needed for a basic discussion of ESI, the practical lessons learned from the February order are:

  • Courts may begin to require some iteration of the twenty-three fields cited by Judge Scheindlin as “the minimum fields of metadata that should accompany any production of a significant collection of ESI.” Id. at *6 n.41.
  • Unless agreed otherwise, it may be best to produce ESI with an accompanying load file because the production of static images without “any means of permitting the use of electronic search tools could be seen as inappropriate downgrading of ESI.” Id.
  • Litigants should be mindful of their meet-and-confer responsibilities, using a common-sense approach to resolve ESI-discovery issues before turning to the courts for relief.