Metadata "presumptively producible" in FOIA Requests.
Metadata is data about data. Software programs such as Excel, Word, e-mail clients and others 
routinely produce such metadata.
In the instant case, National Day Laborers Organizing Network ("NDL") lodged a Freedom Of Information Act ("FOIA") request with four government agencies including Integration and Customs Enforcement ("ICE"). The agencies generally resisted the requests, citing expense and burden and did not comply with a discovery agreement among the parties. NDL then brought a action to compel discovery. While awaiting a hearing on the matter, NDL sent ICE a proposal for the form of the production. The proposal was based on the formats routinely requested by the SEC and the DOJ. ICE then responded with a response that NDL complained was produced in an unsearchable format, was stripped of all metadata and paper and electronic documents were merged together in one PDF file.
The Court then held that while no federal court has yet ruled that metadata is part of a public record several state courts (i.e. New York, Washington, Arizona) have uniformly so held. After discussing the relationship between civil discovery rules and FOIA requests, the Court then said: "...certain metadata is an integral or intrinsic part of an electronic record. As a result, such metadata is 'readily reproducible' in the FOIA context. The only remaining issue is which of the many types of metadata are an intrinsic part of an electronic record. Unfortunately, there is no ready answer to this question. The answer depends, in part, on the type of electronic record at issue (i.e. text record, e-mail, or spreadsheet) and on how the agency maintains its records. ... The best way I can answer the question is that metadata maintained by the agency as a part of the electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not 'readily producible'." [Emphasis added by the Court] National Day Laborer Organizing Network, et al v. United States Immigration and Customer Enforcement Agency, et al, No. 10 Civ. 3488 (SAS), US District Court, S.D. New York, February 7, 2011
The Court took the opportunity to chastise the attorneys in the case about failing to cooperate, stating: "While certainly not rising to the level of a breach of an ethical obligation, such conduct certainly shows that all lawyers...need to make greater efforts to comply with the expectations that courts now demand of counsel with respect to expensive and time-consuming document production."
This decision is sure to have ramifications in all areas of discovery. Look for future cases to flesh out the requirements. It would behoove all document custodians to review this case in view of their policies of retention and destruction and take actions that will reduce the burden that will accompany the next discovery request.
