National Day Laborer Organizing Net. v. U.S. Immigration and Customs Enforcement Agency

Opinion and Order Requiring Government Agencies to include Metadata & Load Files with FOIA Productions of ESI

INTRODUCTION

Plaintiffs (National Day Laborer) brought this action for the purpose of obtaining records from the Defendants (U.S. Immigration and Customs Enforcement Agency, Department of Homeland Security, the Federal Bureau of Investigation, and the Office of Legal Counsel) pursuant to the Freedom of Information Act (FOIA). A dispute arose regarding the format in which the responsive data should be provided to the requesting party.

BACKGROUND

In February 2010, National Day Laborer specifically requested records that pertained to a collaborative program established by the U.S. Immigration and Customs Enforcement (ICE) Agency and the Department of Justice (DOJ). This program was known as Secure Communities. ICE and the other defendants claimed that National Day Laborer’s FOIA request would require millions of pages of responsive documents to be reviewed and produced.

By April 2010, National Day Laborer still had received no substantive response to their FOIA requests. As a result, they brought this lawsuit in an attempt to compel the production of those records. After negotiations with the Government, National Day Laborer agreed to create a five-page Rapid Production List identifying specific records to be produced in an attempt to expedite the process. Again, U.S. Immigration claimed that these requests would produce thousands of pages of documentation.

In October 2010, National Day Laborer asked the Court to order production of specific RPL documents that U.S. Immigration had yet to produce, asking:

  1. that Opt-Out records be produced in 5 days;
  2. that the Defendants provide a Vaughn index in 10 days; and
  3. that an expedited briefing be set for contested exemptions.

In December 2010, the motion was resolved and the Court ordered U.S. Immigration to provide Opt-Out Records by January 2011. Immigration produced five PDF files totaling fewer than 3,000 pages in January 2011, but National Day Laborer asserted that the form in which these records were produced was unusable. They cited that the data was produced in an unsearchable PDF, that the electronic records were stripped of all metadata, and that the paper and electronic records were arbitrarily combined together into one PDF file.

FOIA and the Federal Rules of Civil Procedure

FOIA provides that “in 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.” While no federal court has recognized that metadata is a part of the public record as defined in FOIA, this issue has already been addressed by state courts. State courts have held that metadata is indeed part of public records and must be disclosed following a request for public records.

U.S. Immigration and Customs Enforcement attorneys argued that metadata is substantive information that must be explicitly requested and reviewed for possible exemptions. They also argued that FOIA is not synonymous with discovery in civil litigation.

Order and Opinion issued by the Honorable Shira A. Scheindlin U.S.D.J.
Judge Shira A. Scheindlin, U.S.D.J.
Judge Shira A. Scheindlin, U.S.D.J.

New York, New York – February 7th, 2011

The Court held that Defendants had failed to comply with National Day Laborer’s explicit requests in their July email by producing all records in a non-searchable PDF format. They also violated the Federal Rules of Civil Procedure by producing these records in a form that made it difficult for the requesting party. Because no metadata was specifically requested in National Day Laborer’s July email, the Court did not require the Defendants to reproduce all of the records with metadata. They were, however, ordered to reproduce all text records in static image single file format with attachments and all spreadsheets in native format as requested by National Day Laborer.

The Court also found that certain metadata is an integral part of an electronic record and should be readily reproduced in the FOIA context. Specifically, metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA.  The opinion and order also cited the Federal Rules of Civil Procedure Advisory Committee Note to Rule 34, “states that the 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.”

The court noted that the Plaintiff’s July 23 email didn’t specifically request metadata, therefore the court did not require all past productions to be reproduced with metadata.  The court did order the defendants to reproduce all text records in state image single file format with their attachments.  For any subsequent ESI productions, the Court concluded that defendants must include load files that contain the following fields for all forms 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 following additional fields should accompany any future production of email messages:

  1. To: Addressee(s) of the message.
  2. From: The email address of the person sending the message.
  3. CC: Person(s) copied on the message.
  4. BCC: Person(s) blind copied on the message.
  5. Date Sent: Date the message was sent.
  6. Time Sent: Time the message was sent.
  7. Subject: Subject line of the message.
  8. Date Received: Date the message was received.
  9. Time Received: Time the message was received.
  10. Attachment: The Bates number ranges of email attachments. The parties may alternatively choose to use: Bates_Begin, Bates_End, Attach_Begin, and Attach_End.

The following additional fields shall accompany images of paper records:

  1. Bates_Begin: The beginning Bates number or UPI for the first page of the document.
  2. Bates_End: The ending Bates number or UPI for the last page of the document.
  3. Attach_Begin: The Bates number or UPI of the first page of the first attachment to the parent document
  4. Attach_End: The Bates number or UPI of the last page of the last attachment to the parent document.

The court also directed the Defendants to produce spreadsheets in native format with accompanying load files when the complete metadata isn’t available solely from the native file. Regardless of whether specific metadata is requested, the court held that to produce 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.”
– Hon. Shira A. Scheindlin

Presiding Judge Hon. Shira A. Scheindlin U.S.D. J. noted in her opinion that the Defendants did not appear to be cooperative or responsive in working through issues with the Plaintiffs regarding how the responsive ESI would be produced.

“As far as I can tell from the record submitted by the parties, the equivalent of a Rule 26(f) conference, at which the parties are required to discuss form of production, was not held and no agreement regarding for of production was ever reached.  Nor was a dispute regarding form of production brought to the Court for resolution.”
– Hon. Shira A. Scheindlin

The importance of cooperating and addressing issues pertaining to the form in which ESI will be produced during the “meet and confer” stage of litigation was expressed and received much emphasis.

“…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.”
– Hon. Shira A. Scheindlin