New England Biz Law Update
In what attorneys are calling another standard-setting decision on electronic discovery, U.S. District Court Judge Shira Scheindlin of the Southern District of New York has authored an opinion addressing issues related to metadata and the form of production for electronic records.
Scheindlin, a legend in e-discovery circles for her opinions in Zubulake v. UBS Warburg LLC and The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, recently issued an order in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, a dispute in a Freedom of Information Act case that offers broader e-discovery lessons.
Stephen D. Riden, a commercial litigator at Beck, Reed, Riden in Boston, said the decision “sets the bar for basic expectations of practicing attorneys.”
“Judge Scheindlin encourages lawyers to go back to the basics and have a 26(f) conference early on and discuss how they want production to look and what format works best for both parties,” he said.
The opinion gives “many specific parameters that provide a good baseline for a small, medium or large case,” said Robert Brownstone, technology and e-discovery counsel at Fenwick & West in Silicon Valley, Calif.
In particular, Scheindlin spelled out “the important metadata fields and listed the key ones” that companies may need to save or produce in litigation, said Ralph Losey, a partner at Jackson Lewis in Orlando, Fla., and author of the E-discovery Team blog.
What is acceptable, what is not
The suit began after the plaintiff, an organization that advocates for day laborers, submitted Freedom of Information Act requests to four federal agencies seeking information about Secure Communities, a collaborative program established by U.S. Immigration and Customs Enforcement that enlists state and local governments to help enforce federal immigration law.
When the plaintiff received no response, it filed suit and the e-discovery battle began.
The parties did not engage in a meet-and-confer as mandated by the Federal Rules of Civil Procedure, but the plaintiff did send an e-mail specifying the form of production for electronic records.
When the government produced some electronically stored information, or ESI, the plaintiff complained that the data was produced in an unsearchable PDF format, the electronic records were stripped of all metadata, and electronic and paper records were indiscriminately merged together into one PDF file.
First, Scheindlin noted that “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record,” even in government documents.
The defendants violated the plaintiff’s explicit requests regarding the format of production, as well as the Federal Rules of Civil Procedure, “by failing to produce the records in a reasonably useful form, and by producing the records in a form that makes it difficult or burdensome for the requesting party to use the information efficiently,” Scheindlin wrote.
For future production, she listed nine fields that apply to all forms of electronically stored information as “the minimum fields of metadata that should accompany any production of a significant collection of ESI,” along with 10 fields for e-mail messages and an additional four fields for accompanying paper records. Requests for additional fields should be considered by courts on a case-by-case basis, she said.
“Whether or not metadata has been specifically requested — which it should be — production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading of the ESI. That is why the government’s previous production — namely, static images stripped of all metadata and lumped together without any indication of where a record begins and ends — was not an acceptable form of production. … Thus, it is no longer acceptable for any party, including the government, to produce a significant collection of static images of ESI without accompanying load files,” Scheindlin said.
Load files may contain information about how the data was imported, or the path or directory where the data resided.
Scheindlin also took the parties to task for their failure to cooperate.
While she said that the parties’ failure to communicate and meet and confer did not rise to the level of a breach of an ethical obligation, “such conduct certainly shows that all lawyers — even highly respected private lawyers, government lawyers and professors of law — need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document productions.”
Lessons for practitioners
While Scheindlin’s list of metadata fields is a good baseline, Brownstone said, parties should also consider other factors, such as the specific type of data being produced, when determining what metadata should be provided. Depending on the case, less metadata may be necessary while others may require even more fields.
The opinion’s emphasis on including load files and not downgrading electronically stored information in production reflects an “ever-growing trend toward more native production of ESI,” said Andrew Cosgrove, a partner at Redgrave in Minneapolis with an information law practice focusing on e-discovery, information management, privacy and data protection.
Instead of converting ESI into alternative formats, e-discovery technology is now better equipped to handle native files, which are in whatever format they were originally created, Cosgrove said. That can make discovery easier by eliminating the time and expense of converting files, especially in high-volume cases.
Practitioners should also take note of Scheindlin’s call for greater cooperation and communication, lawyers say.
“Don’t just ignore requests even if they aren’t terribly sophisticated,” Brownstone said. “It is in both parties’ interests to pin down what the format is going be.”
Cosgrove agreed.
“If the parties had a meaningful conversation early on, they wouldn’t have had to run the risk of having the court decide issues for them, or spend the money on conducting a motion practice,” he said.
