Breaking News – Judge Shira A. Scheindlin today (February 7, 2011) issued another important e-discovery opinion. In a case of first impression, Judge Scheindlin held that the federal government must include metadata in Freedom of Information Act productions, that certain key metadata fields are an integral part of public records. National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency , 10 Civ. 3488, (S.D.N.Y., Feb. 7, 2011). State courts have previously ruled on this issue under local sunshine laws and recognized that metadata is part of an electronic document, but this is the first ruling on the federal FOIA law.
The NDLON v. ICE opinion is also important for emphasizing the need for cooperation among counsel. The facts of the case once again demonstrate the old litigation culture of stonewalling and discovery wars. Both sides here failed to communicate adequately on the issue of form of production. Judge Scheindlin says there is no indication they even has a Rule 26(f) conference. Id. at pg. 5. How can attorneys cooperate if they do not even talk? Here are Judge Scheindlin’s closing words of this opinion:
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. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. While certainly not rising 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 production. Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication.
Calling Out The Old-Warrior Professors
I am pretty sure that interesting reference to professors of law was not intended for me, or Professor Steven Gensler. We have both written in favor of this new culture of cooperation. See: Gensler, S. “A Bull’s Eye View of Cooperation in Discovery,” 10 Sedona Conf. J. 363 (2009 Supp.); Losey, R. Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.) Many lawyers in the education field agree with us, but not all. Some are quite vocal in their opposition.
The most famous example of these old warriors is Harvard’s Arthur Miller. Professor Miller, who is now at NYU, was born in 1935 and, not surprisingly, takes a very old-school approach. Professor Miller, and others like him, do not actually practice law (although they do make a few court appearances). They spend most of their time in classrooms and conferences, including e-discovery conferences, saying cynical things about the inability of practicing lawyers to cooperate. They put down The Sedona Conference Cooperation movement as Utopian and idealistic. In my view, these supposed oh-so-wise remarks are really nothing more than not-so-subtle put downs of practicing lawyers. It is a condescending cynicism, not realism. It is certainly not what we should be teaching students of the law.
I have no idea exactly why Judge Scheindlin included law professors in her chastising conclusion above. It may just be that one or more law professors put in an appearance in the NDLON v. ICE case. Maybe there was more to it than that. Regardless, the inclusion of law professors is unusual and made me smile. I grow tired of the counter-productive cynicism and insistence of some “highly respected private lawyers, Government lawyers, and professors of law” to perpetuate yesterday’s discovery wars mentality. Their day is gone. Let’s move on.
The truth is, we lawyers cooperate with each other every day. Sure, we fight where necessary to protect our client’s rights, but good lawyers never fight just for the sake of obstructionism, just to pad their bills. And there are plenty of good lawyers around. They are mindful of their duties to provide efficient cost-effective services to their clients, and yes, their duty to cooperate and tell the truth. Good for Judge Scheindlin for pointing out, once again, that many of the so-called top lawyers in the country are failing to meet their duties.
Metadata is an Integral Part of Federal Records
But this 26 page opinion is about more than ethics, it contains an important ruling on FOIA and metadata. FOIA 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.” 5 U.S.C. § 552(a)(3)(B). Here the government agencies served with a large Freedom of Information Act request, that led to a suit, would not provide the metadata of electronic records requested. Instead, they insisted on stripping out all of the metadata and just provide flat PDF files. The files could not be searched and there was no way to tell for sure what documents were attachments to what emails. They even combined documents together so it was hard to tell when one document ended and another began. Also, even though a specific request was made for spreadsheets in native form, they were produced as flat, dead files.
Judge Scheindlin begins her analysis by citing Magistrate Judge Frank Maas’ excellent opinion, Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, 255 F.R.D. 350 (S.D.N.Y. 2008). She then asserts at page ten:
By now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.23 See, e.g., Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (holding that “metadata is an inherent part of an electronic document, and its removal ordinarily requires an affirmative act by the producing party that alters the electronic document”). See generally W. Lawrence Wescott, The Increasing Importance of Metadata in Electronic Discovery, 14 Rich J.L. & Tech. 10(2008).
I agree with Judge Scheindlin. As I have been saying for years, metadata is part of a computer file. If you remove it, you are altering the file, changing the evidence. You might as well rip off the cover of a paperback book, tear out the table of contents and the index, and then rip off each and every page number in a book – all metadata – and then claim you have not altered the book. Of course you have. It is indisputable. The same applies to metadata in computer files, although not all metadata. All metadata are not created equal. Some fields are more important than others, and Judge Scheinldin goes into these important points too, which we will get to later. But for now, back to the FOIA holding.
Here is how Judge Scheindlin lays it out starting at page 11:
2. FOIA and Metadata
No federal court has yet recognized that metadata is part of a public record as defined in FOIA. However, this precise issue has been addressed by several state courts, which have uniformly held, in the context of state freedom of information laws, that metadata is indeed a part of public records and must be disclosed pursuant to a request for public records. (citations omitted)
She then examines the interesting relationship between FOIA and the Rules of Civil Procedure governing electronic discovery under which the production was again sought.
Regardless of whether FOIA requests are subject to the same rules governing discovery requests, 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.33
FN 33. It is well-established that FOIA was not intended to supplant or supplement the discovery rules; as far as I can tell, however, courts have not addressed the reverse question of whether the discovery rules govern FOIA productions. Nonetheless, because the fundamental goal underlying both the statutory provisions and the Federal Rules is the same – i. e., to facilitate the exchange of information in an expeditious and just manner – common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation. Thus, attorneys should meet and confer throughout the process, and make every effort to agree as to the form in which responsive documents will ultimately be produced. In this context I note that Rule 26(f) specifically requires the parties to discuss “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”
Id. at pg. 16.
Judge Scheindlin then notes that the distinction between the two discovery standards, FOIA and the Rules, are ultimately of no importance in this case because the defendants failed under both.
That said, I now hold, consistent with the state court decisions cited earlier, that certain metadata is an integral or intrinsic part of an electronic record.35 As a result, such metadata is “readily reproducible” in the FOIA context.
Id. at 17-18.
Having ruled against defendants, Judge Scheindlin then gives them a break in the remedy. This is due in large part, I suspect, because the plaintiffs did a poor job in communicating their production form requests.
The next issue to address is the appropriate remedy. Because no metadata was specifically requested in Plaintiffs’ July 23 e-mail, and because this is an issue of first impression, I will not require Defendants to re-produce all of the records with metadata. Moreover, while native format is often the best form of production, it is easy to see why it is not feasible where a significant amount of information must be redacted.34 Therefore, Defendants are ordered to re-produce all text records in static image single file format together with their attachments. However, they must re-produce all spreadsheets in native format as requested by Plaintiffs’ July 23 e-mail.35
Id. at 16-17.
It was not a complete do-over as the plaintiff had requested, only partial and limited. Judge Scheindlin also notes that in a do-over, where a second production of the same documents is sought, a court should normally give “gives serious consideration to cost shifting or cost sharing. See generally Covad Comm ‘cs Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (requiring parties to share costs of reproducing previously produced hard copies in electronic format as both parties were at fault).” Id. at 17 and FN 36.
All Metadata Are Not Created Equal
Judge Scheindlin then does us all a favor by adding one more dimension to her opinion. She considers what metadata fields are usually important in a ESI productions and so should not be excluded. You see there are hundreds of metadata fields in most types of computer files and most have no importance whatsoever to 99.9% of all e-discovery productions. All men may be created equal, but metadata are not.
In Judge Scheindlinds words at pages 18:
The only remaining issue is which of the many types of metadata are an intrinsic part of an electronic record. Unfortunately, there is no ready answer to this question. The answer depends, in part, on the type of electronic record at issue (i.e., text record, e-mail, or spreadsheet) and on how the agency maintains its records. Some agencies may maintain only a printed or imaged document as the final or official version of a record. Others retain all records in native format, which preserves much of the metadata. Electronic records may have migrated from one system to another, maintaining some metadata but not all. The best way I can answer the question is that metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not “readily reproducible.”
For future productions, she provides additional guidance at pages 20-23 of the opinion:
I turn now to all future productions. Here, Plaintiffs ask that the bulkof the ESI be produced in TIFF image format but with corresponding load files, Bates stamping, and the preservation of “parent-child” relationships (i.e. the association between an attachment and its parent record). Plaintiffs also request twenty-four specific fields of metadata, which presumably will be the content of the load files. Finally, Plaintiffs request that spreadsheets be produced in both native format and TIFF format. Hard copy records are requested in single page TIFF image format with corresponding load files to provide ease of review.
The Government has not made a counterproposal in response to Plaintiffs’ Proposed Protocol. Nonetheless, the Court will not impose any greater burden on the Defendants than is absolutely necessary to conduct an efficient review.
That last statement bears repetition and should become oft quoted: “the Court will not impose any greater burden on the Defendants than is absolutely necessary to conduct an efficient review.”
Still, it is a bit vague, as what may be absolutely necessary for one may not be for another, so she provides more specific advice at pages 20-23 and FN 41. Judge Scheindlin believes that the following metadata fields “are the minimum fields of metadata that should accompany any production of a collection of text-based ESI. Requests for additional fields should be considered by courts on a case-by-case basis.” (FN 41):
1. Identifier: A unique production identifier (“UPI”) of the item.42
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 time43 offset of the item’s modified date and time based on the source system’s time zone and daylight savings time settings.
Id. at 20-21.
Judge Scheindlin then goes on to require production of the following additional metadata fields for all email messages:
1. To: Addressee(s) of the message.
2. From: The e-mail address of the person sending the message.3. CC: Person(s) copied on the message.
4. BCC: Person(s) blind copied on the message.
5. Date Sent: Date the message was sent.
6. Time Sent: Time the message was sent.
7. Subject: Subject line of the message.
8. Date Received: Date the message was received.
9. Time Received: Time the message was received.
10. Attachments: The Bates number ranges of e-mail attachments. The parties may alternatively choose to use: Bates_Begin, Bates_End, Attach_Begin and Attach_End.
Id. at 21-22.
Further, she requires native production of the spreadsheets, but even there she said:
… the Government may produce the spreadsheets in a TIFF format with load files, if it can demonstrate why native production of spreadsheets would inevitably reveal exempt information.
Id. at 23.
Judge Scheindlin then goes out of her way to clarify in footnote 44 that the fields she has identified in this case as necessary for production do not have to be included in every case. She recognizes the need for proportionality of efforts consistent with the size and subject matter of the case:
To be clear, my Order requiring the use of this Proposed Protocol for future productions – as amended by the specific metadata fields I have required and by the options I have offered the parties regarding the form of production for spreadsheets – is limited to this case. I am certainly not suggesting that the Proposed Protocol should be used as a standard production protocol in all cases. The production of individual static images on a small scale, where no automated review platform is likely to be used, may be perfectly reasonable depending on the scope and nature of the litigation. While Rule 34 requires that records be produced in a reasonably usable format — which at a minimum requires searchability — any further production specifications are subject to negotiation by the parties on a case by case basis. If no agreement is reached, the court must determine the appropriate form of production, taking into account the principles of proportionality and considering both the needs of the requesting party and the burden imposed on the producing party.
It is important to note Judge Scheindlin’s reliance of the principles of proportionality in determining the appropriate form of production when the parties cannot agree. She specifically states that paper format, or its electronic equivalent, individual static images, may be appropriate in small cases. Indeed, under principles of proportionality it may, in some cases, be appropriate to forgo e-discovery all together. Even though this is the Twenty First Century, it is still early in the century. Electronic discovery is not yet indispensable in all cases, no matter what the type or size. High volume, low dollar cases still make up the vast majority of state and federal cases. Most of these cases make it through the system just fine without e-discovery. The parties, lawyers and judges seem to prefer that.
Why you may wonder? Why do most lawyers still prefer paper productions to electronic? Especially when 98% of the writings are on computer? The paper preference is in large part due to lack of knowledge and experience with electronic alternatives. It is too hard and expensive to do e-discovery for most lawyers because they do not know how. Proportionality for most means paper and avoidance of e-discovery. I expect that will change in the next five to ten years, especially as training programs grow such as my online training, but we are not there yet.
The following near final words of Judge Scheindlin in NDLON v. ICE at page 24 provide a good conclusion to this blog on the issue of metadata:
One final note. 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. The Government would not tolerate such a production when it is a receiving party, and it should not be permitted to make such a production when it is a producing party. 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.45