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lawyers around the country are breathing a bit easier this morning with the news that Judge Shira Scheindlin has withdrawn her landmark FOIA metadata decision, NDLON v. ICE.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.