Legal Commentary

U.S. District Court Judge Shira Scheindlin, perhaps the most influential jurist in the development of electronic data discovery protocols, has issued another opinion that has the EDD community a-flutter, ruling on Feb. 7 that metadata must accompany documents that federal agencies send in response to Freedom of Information Act requests.

Gibson Dunn & Crutcher and consultant Michael Arkfeld quickly sent out alerts about National Day Laborer Org. Network v. Immigration & Customs Enforcement Agency, 2011 U.S. Dist. Lexis 11655 (S.D.N.Y. Feb. 7, 2011) [ Download]. Explains the firm in its Feb. 10 E-Discovery Trends:  "...a dispute arose regarding the format in which the defendants produced responsive information. The defendants produced several thousand pages of documents in five non-searchable PDF files, merging all records without indicating any separate files, merging paper with electronic records, failing to produce e-mails with attachments, and failing to produce any metadata associated with the documents."

"Judge Scheindlin apparently viewed this as a teachable moment regarding how parties should produce [electronically stored information]. While not of the scope of her opinions in Zubulake and Pension Committee, her decision nevertheless provides helpful guidance regarding the form of production and the parties' obligations to discuss these issues in the Rule 26(f) meeting of counsel," observed Gibson Dunn's e-discovery team.

Among her admonishments, Scheindlin declared that "Responding parties should produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search and display information as the producing party."

In Tuesday's edition of Arkfeld's Discovery and Evidence Alert, Arkfeld notes that Scheindlin chastised litigants for failure to cooperate in discovery, with a broader net than usual. Wrote the judge: "While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers -- even highly respected private lawyers, government lawyers, and professors of law -- need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production."

Scheindlin "reiterated the dispute resolution procedures contained in Rule 34, if the parties have a disagreement regarding the form of production," says Arkfeld, a former federal prosecutor and member of Law Technology News' editorial advisory board. The opinion offers an extensive discussion of load files and required metadata, and sets out specific metadata fields for e-mail and images, he notes.

Finally, if a party discloses the improper ESI form, they will be stuck with the tab for a redisclosure -- and parties can't downgrade the "searchability" of ESI.

Stay tuned! LTN's e-discovery columnist, Craig Ball, will be addressing the important role of metadata in an upcoming article. And for an update of key 2010 EDD cases, please see "Drama & Destruction," by Cecil Lynn III, in the February issue of LTN magazine.

Case PDF courtesy of Michael Arkfeld.