Opinion Arose From FOIA Productions by Federal Government; Cost Shifting Is Indicated As the Usual Rule in Production “Do-Overs.”
U.S. District Judge Shira A. Scheindlin, on February 7, 2011, issued yet another important opinion in the e-discovery area. (She is truly a pioneering jurist in this regard, authoring several of the groundbreaking electronic discovery decisions.)
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), District Judge Sheindlin decided that the federal government must include metadata in Freedom of Information Act products, because certain key metadata fields are an integral part of public records. This is the first federal ruling in the FOIA area, although some state court decisions under sunshine laws had earlier acknowledged that metadata is part of an electronic document.
Judge Scheindlin again stressed the need for cooperation on federal electronic discovery issues, indicating that it is no longer acceptable for any party to produce a significant collection of static images of ESI (electronically stored information) without accompanying load files. She also identified the metadata fields that should accompany any production of a collection of text-based ESI and that should accompany production of email messages, although these fields do not necessarily have to be used in every case (although apparently likely in large production cases).
Finally, in a topic of interest to our blog, Judge Scheindlin noted that “[g]eneral;ly, when a court orders a ‘do-over’ [reproduction of previously produced hard copies in electronic format] it gives serious consideration to cost shifting or cost sharing” (Slip Opn., p. 17, n. 36), which usually entails an award of attorney’s fees among the costs.
Inside Univac I.