On February 7th, US District Court Judge Shira Scheindlin issued another influential opinion that further defines the rules of eDiscovery, setting protocols that must be understood to practice law today. Her ruling, stating that metadata must accompany documents that any federal agency sends in response to Freedom of Information requests continues to point out her central role in setting eDiscovery policy. See, National Day Laborer Org. Network v. Immigration & Customs Enforcement Agency, 2011 U.S. Dist. Lexis 11655 (S.D.N.Y. Feb. 7, 2011) for the full case details.
Summary
The major focus of the ruling revolves around a dispute regarding the proper format of production and, in particular, whether metadata was subject to production pursuant to plaintiffs’ FOIA requests. The defendants produced several thousand pages of documents in five non-searchable PDF files, merging all records without indicating any separate files, merging paper with electronic records, failing to produce e-mails with attachments, and failing to produce any metadata associated with the documents.
Showing further support of the parties obligations to discuss these types of issues under Rule 26(f) meet and confer guidelines and Rule 34 which describes the forms of production, the court records a substantial analysis of the issue, and concludes that “certain metadata is an integral or intrinsic part of an electronic record” and, as such, is “‘readily reproducible’ in the FOIA context.” (The current FOIA rules provides that “[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”
Definition of Reasonably Accessible Metadata
Scheindlin admonished the defendants and opined that responding parties should produce “reasonably accessible metadata” that will provide the receiving party the same capability to access, search and utilize the information that the producing party has as part of the records. Under no circumstances should any producing party downgrade the "searchability" of ESI when they are producing information during discovery.
To further clarify the issue regarding the question of which types of metadata are an intrinsic part of an electronic record, the court acknowledged that the answer “depends, in part, on the type of electronic record at issue . . . and on how the agency maintains its records” and determined that “the best way I can answer the question is that metadata maintained by an agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”
The Common Metadata Identifiers
The following is what the court believes are the “minimum fields of metadata that should accompany any production of a significant collection of ESI.”:
1. Identifier: A unique production identifier (“UPI”) of the item.
2. File Name: The original name of the item or file when collected from the source custodian or system.
3. Custodian: The name of the custodian or source system from which the item was collected.
4. Source Device: The device from which the item was collected.
5. Source Path: The file path from the location from which the item was collected.
6. Production Path: The file path to the item produced from the production media.
7. Modified Date: The last modified date of the item when collected from the source custodian or system.
8. Modified Time: The last modified time of the item when collected from the source custodian or system.
9. Time Offset Value: The universal time offset of the item’s modified date and time based on the source system’s time zone and daylight savings time settings.
Note: In her ruling, she also defines additional fields that should accompany any email files, as well as specific fields of information that must accompany images of paper based production. Reference the case for the details.
What does this mean?
The heart of the opinion goes to the issue of cooperation between parties during discovery, which is still a relatively new concept for many attorneys that have long been practicing a different form of law. Judge Scheindlin is not alone in her insistence that the practice of law change and that when it comes to discovery, cooperation, and not obfuscation is the rule of the day. Greater efforts must be made by all parties to comply with the new expectations of courts to provide required information in a timely and cost-effective manner.
Judge Scheindlin is quick to point out that the rules she is proposing here apply to only this case and that each case must be decided based on the negotiations that occur between parties during individual meet and confer meetings. However, parties should be aware of the precedence she sets in the eDiscovery arena and the weight that other judges are likely to place on her leadership.
