February 10, 2011
Judge Shira Scheindlin–author of the well-known Zubulake and Pension Committee opinions–has issued a new decision addressing (1) the acceptable format for the production of electronically stored information ("ESI"), (2) whether and to what extent parties must produce metadata, and (3) counsel’s communication and cooperation obligations regarding these issues in the Rule 26(f) early meeting of counsel and elsewhere. See Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 07, 2011).
In Nat’l Day Laborer, plaintiffs brought the action to compel compliance with their FOIA requests to four governmental agencies, and 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 ESI. 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.
Judge Scheindlin concluded with an apparent response to critics who have objected to the burdens imposed by decisions such as Pension Committee, stating that "[l]awyers are all too ready to point to the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible" and this "can only be achieved through cooperation and communication." Many in the legal world would no doubt share this sentiment.
Gibson Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. The Electronic Discovery and Information Law Practice Group brings together lawyers with extensive knowledge of electronic discovery and information law. The group is comprised of seasoned litigators with a breadth of experience who have assisted clients in various industries and in jurisdictions around the world. The group’s lawyers work closely with the firm’s technical specialists to provide cutting-edge legal advice and guidance in this complex and evolving area of law. For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following Chairs of the Electronic Discovery and Information Law Practice Group:
Gareth T. Evans – Practice Co-Chair, Los Angeles/Orange County (213-229-7734, [email protected])
Jennifer H. Rearden – Practice Co-Chair, New York (212-351-4057, [email protected])
G. Charles Nierlich – Practice Co-Chair, San Francisco (415-393-8239, [email protected])
M. Sean Royall – Practice Co-Chair, Dallas (214-698-3256; [email protected])
Farrah Pepper – Practice Vice-Chair, New York (212-351-2426, [email protected])
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