Judge Scheindlin Withdraws eDiscovery Opinion in Nat'l Day Laborer Org. v. ICE
By: LOUSENE M. HOPPE
July 2011
In February, 2011, Judge Shira Scheindlin, a federal district court judge famous for her eDiscovery opinions, ruled that the Immigration and Customs Enforcement Agency (ICE) and other federal agencies had improperly produced information in unsearchable PDF files, without relevant metadata, in response to a FOIA request. Judge Scheindlin found that the metadata is an integral part of the public record and must be provided with the government's response. In reaching this opinion, she determined that "metadata 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.’”
On June 17, 2011, Judge Scheindlin unexpectedly withdrew this opinion. According to her Order:
This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit. In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011…. I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record. By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.
Though withdrawn and non-precedential, the Nat'l Day Laborer opinion still reveals much about the mindset of a judge who has been heavily invested in eDiscovery issues. Judge Scheindlin's admonishment that cooperation and communication among counsel is crucial to reach early agreement on the form of production for relevant electronically-stored information remains worthy of attention by litigators.