Judge Schiendlin Re-Affirms Dangers of Self-Collection in Opinion

United States District Court Judge Shira A. Scheindlin (author of the Zubulake (2004) and Pension Committee (2010) decisions) has issued another seminal e-discovery opinion in the saga that is National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al. 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012). This marks her fifth decision in the case. The last time we discussed the NDLON case was in the context of metadata and Freedom of Information Act (FOIA) requests [i.e., metadata contained in responsive electronically stored information is producible in FOIA requests (opinion withdrawn)].

The July 13, 2012 opinion still centers on FOIA requests; however, the issue this time around focuses on the effectiveness of the defendants’ searches for relevant ESI in response to the plaintiffs’ request. 

The main take-away from this opinion is Judge Scheindlin’s harsh criticism of custodian self-collection, which is how many of the defendant agencies in this matter conducted their searches and collections.

The three plaintiffs (the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law) sought information regarding a federal immigration enforcement program launched in 2008 from several United States Federal Agencies [the United States Immigration and Customs Enforcement Agency (ICE), United States Department of Homeland Security (DHS), the Executive Office for Immigration Review (EOIR), the Federal Bureau of Investigation (FBI), and the Office of Legal Counsel (OLC)].

Two Reasons Custodians are Challenged by Self-Collection

Judge Sheindlin found that several of the searches conducted by the agencies were, in fact, inadequate, and ordered new searches using a list of “search terms and methodologies agreed to by the parties.”

In her analysis of the defendants’ searches, she stated:
[Defendants] argue that "[i]t is also unclear why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis."
There are two answers to defendants' question. First, custodians cannot "be trusted to run effective searches," without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches; FOIA permits agencies to do so by submitting affidavits that "contain reasonable specificity of detail rather than merely conclusory statements." Defendants' counsel recognize that, for over twenty years, courts have required that these affidavits "set forth the search terms and the type of search performed." But, some-how, DHS, ICE, and the FBI have not gotten the message. So it bears repetition: the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched the full text of documents.
The second answer to defendants' question has emerged from scholarship and caselaw only in recent years: most custodians cannot be "trusted" to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.

E-Discovery Calls for Specialized Staff and Technology
Judge Schiendlin’s message in this case remains clear: organizations should not rely on custodians to uncover potentially relevant ESI in response to FOIA requests. It is a process that requires having the right people and the right technology in place in order to avoid the mistakes and missteps that can occur when you have “lay custodians” conduct them instead.

What are your thoughts on this issue?  Have you had any run-ins yet?

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