Scheindlin's 'Day Laborer' Decision: Much Ado About Metadata

A year after her opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC. fueled debate over document preservation and discovery sanctions, Southern District of New York Judge Shira Scheindlin has issued a "must read" decision on the production of electronically stored information.

While shorter and less sweeping than Scheindlin's opinions in the landmark Zubulake v. UBS Warburg, and in Pension Committee,[FOOTNOTE 1] the Feb. 7, 2010 decision, National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) provides concrete guidance on important subjects, including (1) the format of production of ESI, including the extent to which parties must produce metadata; (2) e-discovery standards applicable to the government, particularly in response to Freedom of Information Act requests; and (3) the need for cooperation among litigants engaged in electronic data discovery.

In Nat'l Day Laborer, plaintiffs sought to compel four federal agencies to comply with their FOIA requests, and a dispute arose regarding the format of defendants' production.[FOOTNOTE 2] Defendants had failed to agree or otherwise respond to a protocol suggested by plaintiffs, which, among other things, called for the production of responsive documents in individual files, the production of Microsoft Excel documents in native format, and consecutive Bates numbering. Instead, defendants produced materials in five unsearchable PDF files consisting of "indiscriminately merged" documents that had been stripped of all metadata and lacked load files.[FOOTNOTE 3] Plaintiffs argued that the production was unusable in this form and moved to compel production consistent with their proposed protocol.

In adjudicating plaintiffs' motion, Scheindlin held, as a preliminary matter, that FOIA requests are subject to the production requirements of the Federal Rules of Civil Procedure.[FOOTNOTE 4] In her view, Rule 34 of the FRCP, which establishes procedures for determining the form in which documents must be produced,[FOOTNOTE 5] "surely should inform highly experienced litigators" -- at least as a matter of common sense -- "as to what is expected of them when making a document production in the twenty-first century."[FOOTNOTE 6]

To Continue Reading: Click Here
-----------------------------------------
Source: law.com
By: Jennifer Rearden and Farrah Pepper