In her most recent e-discovery opinion, United States District Court Judge Scheindlin held that certain metadata should be considered an “integral part” of an electronic record and must be produced by the government in responding to a Freedom of Information Act (“FOIA”) request. National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 U.S. Dist. (S.D.N.Y. Feb. 7, 2011). Judge Scheindlin also expressly admonished practitioners for failing to meet and confer concerning the form of ESI productions and reminded counsel that such cooperation and communication is required “to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production.” Had counsel in the case before her done so, the costly motion practice attendant to this FOIA production could have been avoided.
Under FOIA, the government is required to produce information in any form requested, provided that “the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). Given the dearth of case law interpreting this provision, the court looked to Rule 34 for guidance, noting that, in the context of civil litigation, “[b]y now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” 2011 U.S. Dist. LEXIS 11655, at *11. In the court’s view, producing a significant volume of images without accompanying load files, in effect, inappropriately downgrades the ESI. Id. at *30.
As for the precise fields of metadata required, Judge Scheindlin left room for some debate on a case-by-case basis depending upon how the information is stored, what metadata is available, and proportionality considerations. But Judge Scheindlin also stated in dicta that certain metadata “should accompany any production of a significant collection of ESI,” including:
- a unique production identifier;
- the file name;
- the custodian from whom it was collected;
- the device from which it was collected;
- the file path for the document (source and production);
- the last modified date and time; and
- the time offset value (to allow records to be sorted temporally).
Id. at *27 n.41.
Judge Scheindlin further indicated that, in the case at bar, the following additional metadata must be produced for all emails:
- to / from / cc / bcc;
- date / time sent;
- date / time received;
- subject; and
- some identification of attachments.
Id. at *28.
Given Judge Scheindlin’s reliance on the Federal Rules of Civil Procedure and the breadth of the opinion, NDLON v. USICEA will likely be a polestar opinion in general civil litigation, even though it concerns a FOIA production. Counsel would be wise to heed Judge Scheindlin’s guidance here, both with respect to their meet and confer obligations and the standard metadata that ought to accompany significant ESI productions.