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In another example of how electronic discovery jurisprudence evolves over time, a recent opinion from the Hon. Shira A. Scheindlin (who also authored the Zubulake and Montreal Pension decisions) of the United States District Court for the Southern District of New York found that certain metadata should presumptively be produced during discovery, and expressed frustration with attorneys' lack of communication and cooperation regarding electronic protocol.


In Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, No. 10 Civ. 3488, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011), the plaintiffs sought records from four government agencies pursuant to the Freedom of Information Act ("FOIA"). After a series of production requests from the plaintiffs, the government finally produced five PDF files totaling approximately 3,000 pages. The plaintiffs contended, however, that the government's document production was inadequate because the government produced this data in unsearchable PDF format, stripped electronic records of all metadata, and merged paper and electronic records together in one PDF file.

In response, the government argued that metadata is substantive information that must be explicitly requested by the information seeker and then reviewed by the appropriate federal agency for FOIA exemptions. The government's arguments echoed earlier cases that articulated a presumption against the production of metadata. See Wyeth v. ImPax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) ("Emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata . . . unless the requesting party can demonstrate a particularized need for the metadata or database production it has requested."). See also Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers, LLP, No. 03 Civ. 5560, 2008 WL 5423316, at *6 (S.D.N.Y. Dec. 31, 2008); Ojeda-Sanchez v. Bland Farms, LLC, No. CV608-096, 2009 WL 2365976, at *3 (S.D. Ga. July 31, 2009).

Metadata Presumptively Producible

In Nat'l Day Laborer, however, the court rejected the government's arguments against the production of metadata.  Specifically, as to the question of what kind of metadata constitutes an intrinsic part of an electronic record, the court concluded that "metadata maintained by a government agency as part of an electronic record is presumptively producible under FOIA, unless an agency demonstrates that such metadata is not ‘readily reproducible'." See Nat'l Day Laborer, 2011 WL 381625, at *5 (emphasis in original). Judge Scheindlin listed nine types of metadata that should accompany any production of a significant collection of electronically stored information ("ESI"), and ten metadata fields that should be included with any production of email.  Id. at *6-7.

Parties Must Collaborate on Production Protocol

Judge Scheindlin concluded her opinion by noting her frustration with lawyers and their continuing failure to meet, confer, and cooperate on such basic subjects as the production of ESI and metadata. She noted the expense of litigation "could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible."  Id. at *8. The best way to minimize expense is "through cooperation and communication."  Id.

Practical Considerations

There are two key points in Nat'l Day Laborer. First, going forward, there is a presumption that certain types of metadata will now be included with productions of ESI. Although this opinion was issued in the Southern District of New York, Judge Scheindlin is a thought-leader in the world of e-discovery, and many of her e-discovery opinions are widely cited and relied upon. Indeed, her Zubulake decisions have had a tremendous impact on the Federal Rules of Civil Procedure and our everyday practices. Accordingly, it will not be surprising to see many other courts adopt Judge Scheindlin's holding in Nat'l Day Laborer.

Second, and of perhaps more significance, is Judge Scheindlin's noted dissatisfaction with the continuing lack of cooperation and communication between lawyers when it comes to e-discovery. Although Federal Rule of Civil Procedure 26 is replete with meet and confer requirements, these requirements are frequently ignored in practice.  It is imperative that parties have open and frequent discussions to minimize the costs and burdens associated with e-discovery. The failure to communicate with an opponent will simply lead to more and more costly litigation. As Judge Scheindlin made clear in her opinion, courts are tired of the lack of communication and cooperation between parties.

For more information on this case, or general e-discovery obligations, please contact a member of Buchanan Ingersoll & Rooney's E-Discovery Team.