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“[M]etadata Maintained by the Agency as a Part of an Electronic Record is Presumptively Producible under FOIA, Unless the Agency Demonstrates that such Metadata is Not ‘Readily Reproducible.’”

Posted in CASE SUMMARIES

Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

In this Freedom of Information Act (“FOIA”) action, a dispute arose regarding the proper format of production and, in particular, whether metadata was subject to production pursuant to plaintiffs’ FOIA requests.  Following substantial analysis of the issue, the court held that “certain metadata is an integral or intrinsic part of an electronic record” and, as such, is “‘readily reproducible’ in the FOIA context.”  (FOIA provides that “[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”  (Emphasis added.))  Addressing the question of which types of metadata are an intrinsic part of an electronic record, the court acknowledged that the answer “depends, in part, on the type of electronic record at issue . . . and on how the agency maintains its records” and determined that “the best way I can answer the question is that metadata maintained by an agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”

Setting aside the specific facts and outcome of this particular action, the court’s analysis also provided valuable insight into a number of related issues, including, for example:

• The relationship between FOIA and the civil rules:

It is well-established that FOIA was not intended to supplant or supplement the discovery rules; as far as I can tell, however, courts have not addressed the reverse question of whether the discovery rules govern FOIA productions.  Nonetheless, because the fundamental goal underlying both the statutory provisions and the Federal Rules is the same – i.e., to facilitate the exchange of information in an expeditious and just manner – common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation.  Thus, attorneys should meet and confer throughout the process, and make every effort to agree as to the form in which responsive documents will ultimately be produced.  In this context, I note that Rule 26(f) specifically requires the parties to discuss “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

• What the court believes are the “minimum fields of metadata that should accompany any production of a significant collection of ESI.”:

1. Identifier:  A unique production identifier (“UPI”) of the item.
2. File Name:  The original name of the item or file when collected from the source custodian or system.
3. Custodian:  The name of the custodian or source system from which the item was collected.
4. Source Device:  The device from which the item was collected.
5. Source Path:  The file path from the location from which the item was collected.
6. Production Path:  The file path to the item produced from the production media.
7. Modified Date:  The last modified date of the item when collected from the source custodian or system.
8. Modified Time:  The last modified time of the item when collected from the source custodian or system.
9. Time Offset Value:  The universal time offset of the item’s modified date and time based on the source system’s time zone and daylight savings time settings.

• The production of static images:

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 . . . Thus, it is no longer acceptable for any party, including the Government, to produce a significant collection of static images of ESI without accompanying load files.

• The need for cooperation surrounding the production of ESI:

Once again, this court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to “meet and confer,” “cooperate” and generally make every effort to “communicate” as to the form in which ESI would be produced.  The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court.  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.  Lawyers are all too ready to point the finger at 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.  This can only be achieved through cooperation and communication.