Government lawyers around the country are breathing a bit easier this morning with the news that Judge Shira Scheindlin has withdrawn her landmark FOIA metadata decision, NDLON v. ICE. See my prior blog on the original opinion if you need background on the case: New Opinion by Judge Scheindlin on FOIA, Metadata and Cooperation. Apparently the arguments made by the Justice Department as part of its appeals had an effect on Judge Scheindlin. See my prior blog: Government Appeals and Seeks a Stay of Judge Scheindlin’s FOIA Order on Metadata in NDLON v. ICE.
Judge Scheindlin’s June 17th Order withdrew her prior opinion and offered this explanation:
In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket # 41). I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.
By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit. The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).
Despite this withdrawal, I still think her identification of key metadata fields in this opinion is very helpful and will be cited anyway. Also, I happen to agree with her opinion on metadata, and expect that we will be back to the same place in a year or two after appeals, remands, and probably more appeals. Metadata is part of an electronic record. The government needs to wake up to the realities of the Twenty First Century and give up on its paper crutch.
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Interesting points, but there is a difference between e-discovery (litigation) and “free discovery” (FOIA). Until checks such as proportionality and cost-shifting are introduced in e-FOIA requests, federal, state, and local governments will be crippled by such requests in a time of limited funds. So paper crutch, it is.
When discovery of hundreds of thousands of electronic documents can be completed, from processing through review to production, for a piece of software that can be had for $895, it is ridiculous to assert that cost is a barrier. Simply ridiculous.
Let’s just ignore the costs for the documents having to be culled, reviewed, and processed for production – which can cost hundreds of thousands of dollars. And likely since a vendor processes the documents, the cost of the software is irrelevant. You must be thinking of self-producing 10-12 documents.
The point is not whether or not metadata is discoverable. The problem is how to craft an effective, low-cost redaction capability for privileged metadata within native files. Sure, you can search and replace columns of extracted metadata, but the file is still intact, and the process is still time consuming and expensive to perform and QC.
Moreover, to date, there is no universally acceptible digital redaction methodology for ‘data’ i.e. informational text (except to convert to quasi paper and mimic a black marker strikethrough) much less privileged metadata. It is not really that hard to do, technically, but nobody knowledgeable will bite the bullet and be the test case. Nevertheless, this next layer of redaction is beyond the ken of most and the heart of the issue with NDLON. Judge Scheindlin did the right thing and kudos to her for having the temerity to do it.
What $895 software system allows you to digitally redact metadata in native files?
I am familiar with the price of one such software being at that point. It could be Digital WarRoom [for a stand alone copy]. But Sarah’s comments are to the point. The cost is not in the software, but the tech time, the project management time, the attorney time to review, to redact, etc., etc.