Just as when Judge Scheindlin penned Pension Committee, her latest opinion is already garnering a ton of buzz. In Nat. Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency (“NDLON”), 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011) Judge Scheindlin boldly takes on four governmental agencies (ICE, the Department of Homeland Security, the Federal Bureau of Investigation, and the Office of Legal Counsel) over metadata production in response to FOIA demands.
In NDLON Plaintiffs submitted identical twenty-one page FOIA requests to each of the four defendant agencies. And, after some initial missed deadlines and judicial intervention, Plaintiffs sent the defendants a proposed protocol that requested a specific format for the production of electronic records. Significantly, the proposed protocol was based on the “format demands routinely made by two government entities-the Securities and Exchange Commission and the Department of Justice Criminal Division” (invoking the old “good for the goose” argument).
Before ruling on the protocol, Judge Scheindlin examined the parties’ efforts to cooperate and she was uniformly underwhelmed:
“As far as I can tell from the record submitted by the parties, the equivalent of a Rule 26(f) conference, at which the parties are required to discuss form of production, was not held and no agreement regarding form of production was ever reached. Nor was a dispute regarding form of production brought to the Court for resolution.”
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Source: eDiscovery 2.0
By: Dean Gonsowski
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