Lender, David J., Blaustein, Allen S.
(March 14, 2011, eDiscoverings)
In
National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011), Judge Scheindlin addressed issues regarding the form of production in the context of a FOIA request.
In that case, the parties did not discuss or reach agreement as to the form of production, and did not bring any dispute before the court. Instead, despite plaintiffs' request that the government "save each document on a CD as a separate file," and to let them know if the government had any questions or concerns, the government produced all of the records "in non-searchable PDF format, merging all records without indicating any separate files, merging paper with electronic records, and failing to produce e-mails with attachments."
Id. at *4. Not surprisingly, the court held this production unacceptable.
First, the court held that, "when a collection of static images are produced, load files must also be produced in order to make the production searchable and therefore reasonably usable."
Id. Producing load files is relatively standard with an electronic production of .TIFF or .PDF images, because it indicates which pages or files belong together as a document and where each document begins and ends. It also includes agreed to metadata. Lumping thousands of documents together into a gigantic PDF with no document breaks, as the Government did in this case, is usually not acceptable.
Second, the court followed the line drawn by
Aguilar that "[I]f a party wants metadata, it should 'Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.'"
Id. (
See also Ediscoverings, Sept. 2009 (discussing
Aguilar)). As a result, the court did not require the government to reproduce all of the records with metadata. The court did require the reproduction of all spreadsheets in native format, since this was requested by plaintiffs before production.
Third, the court addressed the form of production for future productions and selected, among the fields requested by plaintiffs, the specific metadata that must be produced. This part of the decision is the most noteworthy, and likely to be considered by other courts, because the court held in a footnote that,
"[w]hile not necessary to the holding in this case, I believe that these are the minimum fields of metadata that should accompany
any production of a significant collection of ESI."
Id. at *6 n.41. With perhaps an exception or two (e.g., Time Offset Value), the metadata fields the court selected were not unreasonable. The court did also note that all productions are subject to negotiation, depending on the needs of the case and the size of the production, and that, if no agreement is reached, courts should consider proportionality in determining the appropriate form of production.
Id. at *7 n.44.
Finally, the court reiterated the need for cooperation, a mantra that is becoming more commonplace in electronic discovery decisions. The court reminded litigants that the only way that the costs of electronic discovery can be diminished is "through cooperation and communication."
Id. at *8.
Please contact
David Lender at +1 212 310 8153 or or
Allen Blaustein at +1 305 577 3120 or if you would like to discuss this case or any other electronic discovery issues further.