Scheindlin to Counsel: Cooperate, Communicate, Meet and Confer!

Now parties, play nice (i.e., negotiate and agree to the form of production or else) … SO ORDERED (in so many words) Shira A. Scheindlin, U.S.D.J., this past month with plenty of dicta for all.  The Honorable Shira A. Scheindlin, most notable for her holdings in Zubulake, Pension Committee, and several other ESI-heavy conclusions of law, is at it again with some Rule 26(f) and Rule 34, guidance for parties now and hereafter.

In National Day Laborer Organizing Network (NDLON) v. U.S. Immigration and Customs Enforcement Agency (ICE), plaintiffs drafted and submitted several demands for production of discovery [“FOIA” litigation] and brought suit to compel production after receiving “[]no substantive response to their requests ….”  2011 WL 381625 (S.D.N.Y. Feb. 7, 2011).  Of what was produced by defendants, the plaintiff(s) complained as follows:  “(1) the data was produced in an unsearchable PDF format; (2) electronic records were stripped of all metadata; and (3) paper and electronic records were indiscriminately merged together in one PDF file.”  Id. at 2.  As a result, oral arguments were held before Judge Scheindlin this past January.

During the hearing, Judge Scheindlin took a moment to remind the parties of their obligations to “meet and confer” pursuant to F.R.C.P. 26(f).  In this case, no such meeting was held and “[]no agreement regarding form of production was ever reached.  Nor was a dispute regarding form of production brought to the Court for resolution.”  Id.  Further, Judge Scheindlin breaks down the intentions of F.R.C.P. 34 as it pertains to form of production, as follows:

First, the requesting party may specify the form of production of electronically stored information (“ESI”).  Second, the responding party may object to the specified form; if it does so, it must state the form that it intends to use.  If the requesting party disagrees with the counter-proposal, the parties must attempt to resolve the disagreement.  If they cannot, the requesting party may make a motion to compel production in the requested form.  Third, if the requesting party has not specified a form of production, the responding party must state the form that it intends to use.  The responding party may select the form in which the material ‘is ordinarily maintained,’ or in a ‘reasonably usable form.’  The Advisory Committee Note to Rule 34 states that the responding party’s ‘option to produce ESI in a reasonably usable form does not mean that it is free to convert ESI from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently.’  Finally, the Advisory Committee Note also states that if the ESI is kept in an electronically-searchable form, it ‘should not be produced in a form that removes or significantly degrades this feature.’

Id. at 3-4.

Judge Scheindlin goes on to adopt and apply the holding of Magistrate Judge Frank Maas in Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, 255 F.R.D. 350 (S.D.N.Y. 2008).  In Aguilar, a class action suit was filed and alleged unlawful searches and seizures of plaintiffs’ homes, whereas a discovery dispute arose regarding the production of metadata.  The court granted in part and denied in part plaintiffs’ request for the production of metadata for several types of electronically stored information (“ESI”), inter alia.  As Judge Scheindlin interprets it, Judge Maas (Aguilar) relies heavily on the guidance of the Sedona Principles, where “[]the Conference abandoned an earlier presumption against the production of metadata in recognition of ‘the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party ….”  NDLON at 4.

Of further importance is the definition of a “load file,” taken from The Sedona Conference Glossary, explained in Aguilar, and now revisited in NDLON as:

A file that relates to a set of scanned images of electronically processed files, and indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends.  A load file may also contain data relevant to the individual documents, such as selected metadata, coded data, and extracted texts.  Load files should be obtained and provided in prearranged or standardized formats to ensure transfer of accurate and usable images and data.

NDLON at 4 (citing The Sedona Conference® Glossary: E-Discovery & Digital Information Management (3d ed. Sept. 2010), at 31).

Judge Scheindlin opines that “[]load files must also be produced in order to make the production searchable and therefore reasonably usable.”  NDLON at 4.  This is clarified by footnote(s), a common way for the Judge to afford dicta and guidance, as follows:

The question arises as to the expense of creating load files.  While I cannot predict the exact cost … the fact is that a significant collection of static tiff images is not reasonably usable without load files.  A party can generally avoid the expense … by producing the records in native format.  [S]ome metadata is not embedded in the native file and so will not necessarily travel with [it.]  For this metadata, load files might still be necessary even with a native production.  These files include:  Identifier, File Name, Custodian, Source Device, Source Path, Production Path, Modified Date, Modified Time, and Time Offset Value ….

NDLON n.25

[I]f a party chooses to produce a significant collection of TIFF images, it must assume that the receiving party will review those images on some sort of review platform … which requires load files in order to be reasonably usable.  NDLON. n.45 (citing SEC v. Collins & Aikman Corp., 256 R.R.D. 403, 413 (S.D.N.Y. 2009).

 

Judge Scheindlin’s discussion in regard to the case at bar:

Although a requesting-party [NDLON] should ask for metadata if it wants metadata (see generally Aguilar), defendants in NDLON are not excused from producing the records in a “usable format.”  NDLON at 5.  Additionally, Judge Scheindlin states that “[plaintiff’s] requests^[1] explicitly placed Defendants on notice ….”  Id.  Further, “[]Plaintiffs asked the [Defendants] to ‘let us know as soon as possible how [they] plan[] to produce the Rapid Production List.’^[2] Had the [Defendants] done what they were asked, any ambiguity as to the nature of the requested format would have been resolved.  Finally, Plaintiffs wrote ‘if you have any questions or concerns, please feel free to call me.’”  Id. at 5-6

Here’s what Defendants did wrong (according to Judge Scheindlin):

1. Produced all of the records in non-searchable PDF format;
2. Merged the records without isolation/notation of specific files;
3. Comingled paper and ESI;
4. Failed to produce emails with attachments;
5. Failed to produce records in a ‘reasonably usable form’ as per F.R.C.P.;
6. Produced records in a form that is difficult or burdensome for efficient use of the information;
7. Failed to produce any load file(s) with significant collection of static images of ESI;
8. Ignored Plaintiff’s invitation to contact them with any questions;
9. Did not meet and confer with Plaintiffs;
10. Did not make reasonable attempt(s) to agree on form of production with Plaintiffs (i.e., inadequate cooperation and communication).

See generally NDLON at 2, 5-6.

Despite her dissatisfaction with Defendants’ actions (or lack thereof); Judge Scheindlin reasons that Plaintiffs failed to specifically request metadata, and she refused to require Defendants to re-produce all of the records with metadata.  Judge Scheindlin affords her thoughts on a “do-over” by citing Covad Comm’cs Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008).  Specifically, and as held in Covad, “[]serious consideration [should be given] to cost shifting or cost sharing.”  See NDLON n.36.  Additionally, Judge Scheindlin explains that ‘native’ is not the ideal form of production, here, as a significant amount of text would need to be redacted in this matter.  Accordingly, “Defendants [were] ordered to re-produce all text records in static image single file format together with their attachments.”  Id. at 7.  Judge Scheindlin further ordered that the records be Bates stamped in an effort to assist in the production of single file format.

Now, if you are seeking some black-letter interpretation of law … look elsewhere.  While Judge Scheindlin gets her ‘meet and confer’ point(s) across quite clearly, she subtly affords guidance in regard to what metadata is crucial metadata, in ESI productions.  Judge Scheindlin writes, as dicta and laying below the page margins in a footnote, “[w]hile not necessary to the holding in this case, I believe that [below] are the minimum fields of metadata that should accompany any production of a significant collection of ESI.  Requests for additional fields should be considered by courts on a case-by-case basis.”  Id. n.41.  The fields are:

Additionally, Judge Scheindlin orders the other format requirements (in Plaintiffs’ Proposed Protocol) be produced with the fields above, yet warns that this may not apply in all cases.  Judge Scheindlin explains (again in a footnote):

I am certainly not suggesting that the Proposed Protocol should be used as a standard production protocol in all cases.  []While Rule 34 requires that records be produced in a reasonably usable format – which at minimum requires searchability – any further production specifications are subject to negotiation by the parties on a case-by-case basis.  If no agreement is reached, the court must determine the appropriate form of production, taking into account the principles of proportionality and considering both the needs of the requesting party and the burden imposed on the producing party.

Id. n.44.

But when it comes down to it, Judge Scheindlin notes that this issue could have avoided judicial review had the parties “[]had the good sense to ‘meet and confer,’ ‘cooperate,’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”  Id. at 10.  Such lack of “sense” continues to peeve Judge Scheindlin, and she urges lawyers to take greater measures to comply with discovery-rules and expectations of courts when it comes to the production of documents.  According to Judge Scheindlin; if the parties cooperate and communicate, they will decrease the expense of litigation.  And let’s face it … parties are most certainly looking to lessen the expenses associated within the discovery-phase of a litigation.

 

 

 

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