On 7 February 2011 Judge Shira Scheindlin of the Southern
District of New York issued the latest in her series of landmark
e-discovery decisions. In 2003-2004, Judge Scheindlin issued
her now-famous Zubulake opinions, which established
parties' responsibilities in the preservation and production of
electronically stored information (ESI). She again broke new ground
in early 2010 with an opinion titled, "Zubulake Revisited: Six
Years Later" in the case of Pension Committee of the
University of Montreal Pension Plan v. Banc of America Secs., LLC,
et al. In Pension Committee, Judge Scheindlin held
that the "failure to collect records – either paper
or electronic – from key players" and the failure to
issue "a written litigation hold" constitutes gross
negligence or willfulness "as does the destruction of email or
certain backup tapes after the duty to preserve has
attached."
This time, the court addressed the form in which electronic files
must be produced. In National Day Laborer, the plaintiffs'
principal complaints related to the defendants' document
production were: (1) the defendants produced data in an
unsearchable PDF format; (2) the defendants produced electronic
records that were stripped of all metadata; and (3) the defendants
merged paper and electronic records indiscriminately into a single
PDF file. The court held that production of any form of ESI must
include metadata that is an "intrinsic" or
"integral" part of the electronic records. For that
reason, production of any type of ESI must include load files
containing certain fields. Where the document produced is an email
or an image of a paper record, additional fields must be captured
in the load file. Moreover, the defendant must produce spreadsheets
in native format with load files if metadata is not preserved in
its native form. Although the document production in this case was
not made in the context of civil discovery, but rather was a
response to a FOIA request, the court stated that Rule 34
"surely should inform highly experienced litigators as to what
is expected of them when making a document production in the
twenty-first century."
Notably, the court expressed frustration at the parties'
failure to adequately address these issues at the outset of the
case: "Once again, this Court is required to rule on an
e-discovery issue that could have been avoided 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."
It is expected that this ruling, in the tradition of
Zubulake and Pension Committee, will be widely
followed. Accordingly, it is worth noting the following key
takeaways:
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It is of paramount importance that parties "meet and confer," "cooperate," and generally make every effort to "communicate" at an early stage as to the form of ESI to be produced.
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Certain metadata is an "integral or intrinsic" part of an electronic record. The "intrinsic" metadata must be produced along with the electronic records.
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The types of metadata considered to be "intrinsic" depend on the type of electronic record and how it is maintained. All forms of ESI should contain load files containing a specific set of fields, and depending on the format of the ESI, additional fields may be required.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.