For those who thought the Freedom of Information Act (“FOIA”) was the last frontier of unregulated form of production, Judge Shira A. Scheindlin has a message for you; no one escapes the long arm of the E-Discovery Rules.
Last week, the e-Discovery Judge Célèbre made an extremely interesting ruling that FOIA request responses issued by the Federal Government must be in searchable format and include metadata. In Nat’l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, Judge Scheindlin stated with respect to FOIA responses, “it is no longer acceptable for any party, including the Government, to produce a significant collection of static images of ESI without accompanying load files,” and further that, “production of a collection of static images without any means of permitting the use of electronic search tools is an inappropriate downgrading of the ESI.” Of course the Judge made the proper noise about her ruling applying only to this particular case/ fact set and also stated that all forms of production disputes hinge on the requesting party making the correct request, but it’s easy to see that this ruling will have repercussions.
By my unofficial count, the Federal Government received over 700,000 FOIA requests in 2009 and in a heavy year, for example 2004 (when many documents regarding Sept. 11th were made available,) over 4 million requests. For the uninitiated, the Freedom of Information Act is a federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States Government. Any U.S. citizen, foreign national, foreign government, state government, partnership, corporation or association may make a FOIA request and expect a response from the Federal Government. And before Judge Scheindlin’s ruling, it appears the Government could make that response in any format it wished.
However that all changed with Nat’l Day Laborer.
In the case, the plaintiffs asked for records from four government agencies to be in single file format and specifically for Excel spreadsheets to be delivered in native format. Instead of complying, the Government produced the files as unsearchable PDFs stripped of all metadata and with paper and electronic documents comingled. In defense of this practice, the Government argued that if plaintiffs wanted metadata they should have requested it separately since it’s separate from the underlying documents. And with regard to searchability, the Government claimed that FOIA regulations don’t say anything about it — and if FOIA regulations and the Federal Rules of Civil Procedure conflict on a point, then the FOIA regulations must trump. Judge Scheindlin made neat work of this argument. About the metadata issue, she reaffirmed the decisions of several state courts and held that “certain metadata is an integral or intrinsic part of an electronic record [and] as a result, such metadata is ‘readily reproducible’ in the FOIA context.” The Judge then went on to list 23 specific fields of metadata that should be included in the production. Regarding the searchability issue, Judge Scheindlin noted that in fact the two sets of rules are not in conflict because, “FOIA is silent with respect to form of production, requiring only that the record be provided in “any form or format requested by the person if the record is readily reproducible by the agency in that form or format,” and thus the FRCP could give guidance on the issue. Her guidance then included the above quotes about production of static ESI being “unacceptable” and a “downgrading” of the data.
What is the upshot of all this? Well with somewhere between 700,000 and 4 million FOIA requests being made each year, and with requestors becoming savvier every day about electronic discovery methods, it’s a certainty that government agencies will be facing many, many requests to which the responses require searchability and metadata fields. For those government agencies that don’t currently have the software to provide such files, it may be time to start contemplating a purchase!