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.
Highlights include:
- Producing static images stripped of all metadata and lumped together without any indication of where a record begins and ends was not an acceptable form of production and failed to satisfy the requirement of Federal Rule of Civil Procedure 34 that records be produced either in the form in which the documents are "ordinarily maintained" or in a "reasonably usable form."
- "[T]he responding party’s ‘option to produce [ESI] in a reasonably usable form does not mean that [it] is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently.’"
- "If ESI is kept in an electronically-searchable form, it ‘should not be produced in a form that removes or significantly degrades this feature.’"
- "By now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record."
- "[I]t is by now well accepted that when a collection of static images is produced, load files must also be produced in order to make the production searchable and therefore reasonably usable."
- "A party often has the option to produce ESI in native format, which will reduce costs. But if a party chooses to produce a significant collection of TIFF [or PDF] images, it must assume that the receiving party will review those images on some sort of review platform–such as a Concordance database–which requires load files in order to be reasonably usable."
- 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.
- The minimum metadata fields that should be included in the load files and accompany any production of ESI are: (1) Identifier (i.e., a unique production identifier of the item); (2) File Name; (3) Custodian; (4) Source Device; (5) Source Path; (6) Production Path; (7) Modified Date; (8) Modified Time; and (9) Time Offset Value.
- The following additional metadata fields should accompany e-mails: (1) To; (2) From; (3) Cc; (4) Bcc; (5) Date Sent; (6) Time Sent; (7) Subject; (8) Date Received; (9) Time Received; and (10) Attachments (i.e., the Bates ranges of e-mail attachments).
- The following additional fields should accompany images of paper records: (1) Bates_Begin; (2) Bates_End; (3) Attach_Begin; and (4) Attach_End.
- Spreadsheets should be produced in native format, with accompanying load files if the required metadata is not preserved in the native file. Parties may produce spreadsheets in TIFF format with load files if they can demonstrate why native production would reveal inappropriate information.
- "Whether or not metadata has been specifically requested–which it should be–production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading of the ESI."
- The dispute could have been avoided if the parties had held the equivalent of a Rule 26(f) conference, at which they are required to discuss form of production.
- "[A]ll 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" to "’meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced."
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, gevans@gibsondunn.com)
Jennifer H. Rearden – Practice Co-Chair, New York (212-351-4057, jrearden@gibsondunn.com)
G. Charles Nierlich – Practice Co-Chair, San Francisco (415-393-8239, gnierlich@gibsondunn.com)
M. Sean Royall – Practice Co-Chair, Dallas (214-698-3256; sroyall@gibsondunn.com)
Farrah Pepper – Practice Vice-Chair, New York (212-351-2426, fpepper@gibsondunn.com)
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