Counsel’s Obligation to Meet and Confer Regarding Electronically Stored Information
By: LOUSENE M. HOPPE
February 2011
The U.S. District Court judge who issued five ground-breaking eDiscovery-related opinions or orders in the well-known case of Zubulake v. UBS Warburg has recently revisited this legal issue. On February 7, 2011, Judge Shira Sheindlin ruled that the Immigration and Customs Enforcement Agency (ICE) and other federal agencies had improperly produced information in unsearchable PDF files, without relevant metadata. Various immigration advocacy groups had sued ICE and three other government agencies seeking records under the Freedom of Information Act (FOIA). Judge Sheindlin found that the metadata is an integral part of the public record and must be provided in response to FOIA requests.
Metadata is electronic data that provides information about one or more aspects of a document or other electronic information, such as the time and date of creation, the means of creation, the name of the creator or author, the purpose of the data, its location on a computer network, and the standards used in creating the data. For example, a text document’s metadata may contain information about who the author is, how long the document is, when the document was written, and a brief summary of the contents. Producing metadata requires a load file, which inputs the collected data into a document review program. The use of metadata often results in a more accurate and time-efficient search of electronically stored information (ESI).
The opinion makes clear that it is unacceptable for any party to produce a significant collection of static ESI images without the accompanying load files. Judge Scheindlin also identified specific metadata fields that should normally accompany any production of text-based ESI, including email messages, with additional fields to be examined on a case-by-case basis. The required fields disclose information such as the custodian of the document, the creation date, the date and time an email was sent, the date and time the email was received, the identity of the recipient and the author.
Besides ordering the government to produce metadata, Judge Sheindlin stressed that cooperation and communication among counsel, whether government or non-government, is crucial to reach early agreement on the form of production for relevant ESI. The Court counseled: “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…. While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers … 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.”
The government agencies which received the adverse ruling are expected to appeal, especially with respect to necessity of producing metadata in response to FOIA requests. Given the weight of Judge Scheindlin’s authority in this area, however, her discussion of the required data fields is likely to influence litigation decisions regarding which metadata fields should accompany ESI productions. A copy of the opinion in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enf. Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. Feb. 7, 2011) can be found at: http://www.courthousenews.com/2011/02/04/DayLaborer.pdf.