Nat'l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency

On 7 February 2011 Judge Shira Scheindlin of the Southern District of New York issued the latest in her series of landmark e-discovery decisions. In 2003-2004, Judge Scheindlin issued her now-famous Zubulake opinions, which established parties' responsibilities in the preservation and production of electronically stored information (ESI). She again broke new ground in early 2010 with an opinion titled, "Zubulake Revisited: Six Years Later" in the case of Pension Committee of the University of Montreal Pension Plan v. Banc of America Secs., LLC, et al. In Pension Committee, Judge Scheindlin held that the "failure to collect records – either paper or electronic – from key players" and the failure to issue "a written litigation hold" constitutes gross negligence or willfulness "as does the destruction of email or certain backup tapes after the duty to preserve has attached."

This time, the court addressed the form in which electronic files must be produced. In National Day Laborer, the plaintiffs' principal complaints related to the defendants' document production were: (1) the defendants produced data in an unsearchable PDF format; (2) the defendants produced electronic records that were stripped of all metadata; and (3) the defendants merged paper and electronic records indiscriminately into a single PDF file. The court held that production of any form of ESI must include metadata that is an "intrinsic" or "integral" part of the electronic records. For that reason, production of any type of ESI must include load files containing certain fields. Where the document produced is an email or an image of a paper record, additional fields must be captured in the load file. Moreover, the defendant must produce spreadsheets in native format with load files if metadata is not preserved in its native form. Although the document production in this case was not made in the context of civil discovery, but rather was a response to a FOIA request, the court stated 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."

Notably, the court expressed frustration at the parties' failure to adequately address these issues at the outset of the case: "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."

It is expected that this ruling, in the tradition of Zubulake and Pension Committee, will be widely followed. Accordingly, it is worth noting the following key takeaways:

  • It is of paramount importance that parties "meet and confer," "cooperate," and generally make every effort to "communicate" at an early stage as to the form of ESI to be produced.
  • Certain metadata is an "integral or intrinsic" part of an electronic record. The "intrinsic" metadata must be produced along with the electronic records.
  • The types of metadata considered to be "intrinsic" depend on the type of electronic record and how it is maintained. All forms of ESI should contain load files containing a specific set of fields, and depending on the format of the ESI, additional fields may be required.