On June 17, 2011, United States District Court Judge Scheindlin issued a brief opinion and order withdrawing her February 7, 2011 opinion, which had 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. Our prior posting on this opinion can be found here. The Court withdrew its June 2011 opinion because “subsequent admissions” have revealed that the Court’s decision “was not based on a full and developed record.”
While Judge Scheindlin’s order makes clear that her February 2011 opinion will have no precedential value, it is not likely the end of this story. This influential jurist’s strongly worded views on the importance of metadata namely, that it is “well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record,” National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655, at *11 (S.D.N.Y. Feb. 7, 2011), are likely to resurface in her future opinions and those of other courts when the right facts present. Likewise, given the considerable attention afforded to this and other e-discovery rulings by Judge Scheindlin, we would also anticipate that the withdrawn opinion’s list of metadata that “should accompany any production of a significant collection of ESI,” id. at *27 n.41, will likely be viewed by other courts as guidance on this issue.
Accordingly, counsel should continue to be mindful of the guidelines set forth in the February 2011 opinion, both with respect to their meet and confer obligations and to assuring that their preservation and collection efforts are sufficient to, among other things, permit the production of metadata.