Metadata and Load Files Required for Government FOIA Responses

Daniel LimJohn Blumenschein Federal District Court Judge, Shira A. Scheindlin of the Southern District of New York, author the Zubulake opinions as well as last year’s seminal Pension Committee case, has written another landmark opinion regarding e-discovery with National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). The case is in the context of Freedom of Information Act (FOIA) requests. In a matter of first impression, Judge Scheindlin holds 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.’” Slip op. at 18 (emphasis in original). Judge Scheindlin makes further findings as to fields to be included in load files for FOIA productions. The opinion underscores the importance of ESI preservation and production that preserves original metadata.

Read the full Court decision here.

The Plaintiffs had requested FOIA records from four government agencies --- Immigration and Customs Enforcement (“ICE”), Department of Homeland Security, the FBI, and Office of Legal Counsel. The records related to a collaborative program called Secured Communities, where ICE and the Department of Justice enlist states and municipalities with the enforcement of federal immigration law. The Defendants’ FOIA response included five .pdf files totaling less than three thousand pages. The Plaintiffs objected that the data was (1) produced in an unsearchable format, (2) that the electronic records had been stripped of all metadata, and that (3) the paper and electronic records were merged together in the .pdf file.

Judge Scheindlin first notes that FOIA requires agencies to provide records “in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” Slip op. at 7 (citing 5 U.S.C. § 552(a)(3)(B)). While the Electronic Freedom of Information Act Amendments of 1996 (“E-FOIA”) recognize the need for government agencies to “use new technology to enhance public access to agency records and information,” the Court found little caselaw defining “readily reproducible.” Id. Judge Scheindlin further notes that caselaw has established that (1) “metadata is generally considered to be an integral part of an electronic record,” and (2) when a collection of static images (e.g., .tif files) are produced, load files must be produced to make the production searchable and reasonably usable.

Turning to the facts of the case, the Court found that the Defendants were on sufficient notice that Plaintiffs requested spreadsheets in native format and text records as separate, i.e., single files. Defendants failed to respond to Plaintiffs’ offer to discuss the format of production. Instead, Defendants produced all records non-searchable .pdf format., merging all records, and failing to produce e-mails with attachments. The Court concluded that this production failed to satisfy FRCP 34 or FOIA.

As for the remedy, the Court found that because Plaintiffs did not specifically request metadata, and because this was a case of first impression, it would not require the Defendants to reproduce all of the records with metadata. The Court ordered the Defendants to re-produce all text records in static image single file format together with their attachments, and all spreadsheets in native format. For future productions, the Court directed a protocol where the bulk of files would be produced in .tif image format with load files containing certain specified fields of metadata and spreadsheets would be produced in native format. The Court carefully noted that this protocol was specific to this case, but that FRCP 34 requires that records be produced in a reasonably usable format, “which at a minimum requires searchability.”& Id. at 23 n. 44.

The significance of the opinion is that the Court announces that metadata presumptively is producible under FOIA, and that the government has the burden to establish otherwise. The Court’s particular concern was that the Defendants’ production of static images stripped of all metadata and lumped together without any indication of where a record begins and ends was unacceptable, regardless of whether or not metadata had been requested specifically. Judge Scheindlin viewed the production as “an inappropriate downgrading of ESI.” Slip op. at 24. The Court concluded with an admonishment about continued attorney failures to cooperate and communicate on these issues.

Clearly, the case law continues to point to the need to collect, preserve, process, and produce ESI load files in a forensically-sound manner that preserves metadata.  The best practice is to use EnCase® eDiscovery to accomplish these goals by maintaining original native files throughout these processes.

For e-discovery practitioners, it is critical that they select a solution that allows them to comply with the metadata requirements from these recent decisions. Guidance Software’s EnCase® eDiscovery preserves metadata at the point of collection in its original native format. In fact, all of the metadata fields that Judge Scheindlin required in future productions by the federal government in National Day Laborer Organizing Network are preserved with EnCase® eDiscovery. Finally, EnCase® eDiscovery produces its forensically-preserved collections in load file format, thereby, making it the only all-in-one solution that can comply with the standard set by this case, as well as similar state cases dealing with metadata productions.

Read the full Court decision here.

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Daniel Lim is Senior Director and Associate General Counsel at Guidance Software. John Blumenschein is Senior Counsel at Guidance Software. Both are members of Guidance Software's e-discovery legal team.