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National Day Laborer Organizing Network, et al v. United States Immigration and Customs Enforcement Agency

February 7, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:



Plaintiffs brought this action for the purpose of obtaining records, pursuant to the Freedom of Information Act ("FOIA"), from four government agencies (collectively, "Defendants"). Specifically, the requests pertain to Secure Communities, a collaborative program established by the United States Immigration and Customs Enforcement Agency ("ICE") and the Department of Justice ("DOJ") that enlists states and localities in the enforcement of federal immigration law.*fn1 A dispute has now arisen regarding the format in which the Defendants have produced records to Plaintiffs, and will be required to produce records to Plaintiffs in the future. Those records consist of electronic text records, e-mails, spreadsheets, and paper records. To set the stage, I note that generally speaking records can be produced in hard copy, static images (with or without load files) and native file format (with or without load files).


In February 2010, Plaintiffs submitted identical twenty-one page FOIA requests to each of the four defendant agencies.*fn2 Defendants claim that these requests would require production of millions of pages of responsive documents. Because the Plaintiffs received no substantive response to their requests, on April 27, 2010, they brought this suit to compel production of responsive records. After negotiating with the Government, Plaintiffs agreed to create a five-page Rapid Production List ("RPL") identifying specific records that would be sought and hopefully produced on an expedited basis. The Government believes that even responses to the RPL will involve thousands of pages of records.

After further negotiations, the parties reached an agreement on July 7, 2010, regarding production responsive to the RPL. In substance, the Defendants agreed to produce "the bulk of responsive, non-exempt materials by Friday, July 30."*fn3 The agreement also provided that if the Defendants identified responsive, non-exempt materials that could not be produced by that date, they would provide Plaintiffs with a description of such materials by July 26, and would propose an alternative date for their production. Defendants failed to produce any records by the agreed-upon July 30 date, but nearly two thousand pages of records were produced on August 3, August 13, September 8, and October 22, 2010.*fn4 These productions did not satisfy the July 7 agreement.

On October 22, 2010, Plaintiffs moved for a preliminary injunction to compel production for five categories of the RPL documents that had not been produced. Specifically, Plaintiffs asked the Court to order (1) that Opt-Out records -- defined in the RPL as "National policy memoranda, legal memoranda or communications relating to the ability of states or localities to opt-out or limit their participation in [the program]" -- be produced within five days; (2) that Defendants provide a Vaughn index within ten days;*fn5 and (3) that an expedited briefing schedule be set for contested exemptions. The motion was resolved at a conference held on December 9, 2010, with an order requiring Defendants to provide the Opt-Out Records by January 17, 2011.*fn6

On December 22, 2010, Plaintiffs sent the Government a Proposed Protocol Governing the Production of Records ("Proposed Protocol"). This proposal, annexed hereto as Exhibit A, sets forth a requested format for the production of electronic records and a separate requested format for the production of paper records. As Plaintiffs note, the Proposed Protocol is based, in part, on the format demands routinely made by two government entities -- the Securities and Exchange Commission and the Department of Justice Criminal Division.

In advance of a court conference scheduled for January 12, 2011, Defendants produced five PDF files totaling less than three thousand pages. Upon receipt of these files, Plaintiffs again sought assistance from the Court, asserting that the form in which these records were produced was unusable.*fn7 Plaintiffs made three specific complaints: (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. Plaintiffs asked the Court to "so order" the Proposed Protocol.*fn8 In response, the Government submitted a letter defending its form of production.*fn9 An oral argument on this issue was held on January 12, 2011.*fn10

Before turning to a discussion of the issues raised by this dispute, it is important to describe what the parties did and did not do in an effort to negotiate an agreed upon form of production. As far as I can tell from the record submitted by the parties, the equivalent of a Rule 26(f) conference, at which the parties are required to discuss form of production, was not 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. The Proposed Protocol was first provided to Defendants on December 22, 2010, and also was the first time Plaintiffs made a written demand for load files and metadata fields.*fn11 Prior to December 22, the only written specification of form of production was a July 23 e-mail from Bridget Kessler, Plaintiffs' counsel, to AUSA Connolly, Defendants' counsel. Given its importance and brevity, I quote the full text of this e-mail:

We would appreciate if you could let us know as soon as possible how ICE plans to produce the Rapid Production List to plaintiffs. To facilitate review of the documents between several offices, please (1) produce the responsive records on a CD and, if possible, as an attachment to an email; (2) save each document on the CD as a separate file; (3) provide excel documents in excel file format and not as PDF screen shots; and (4) produce all documents with consecutively numbered bate [sic] stamps. . . . Thank you for your help and if you have any questions or concerns, please feel free to call me.

It is undisputed that Defendants' counsel did not respond to the e-mail by raising any questions or concerns. Defendants do not deny that the records that have been produced, including but not limited to spreadsheets, are in an unsearchable PDF format with no metadata.


A. FOIA and the Federal Rules of Civil Procedure

FOIA provides that "[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format."*fn12

While Congress has recognized the need for "Government agencies [to] use new technology to enhance public access to agency records and information," there is surprisingly little case law defining this standard.*fn13 The leading case, Sample v. Bureau of Prisons, provides the following guidance:

Under any reading of the statute, however, "readily reproducible" simply refers to an agency's technical capability to create the records in a particular format. No case construing the language focuses on the characteristics of the requester. See, e.g., TPS, Inc. v. U.S. Dep't of Defense, 330 F.3d 1191, 1195 (9th Cir. 2003) (interpreting "readily reproducible" as referring to technical capability); see also, e,g., Carlson v. U.S. Postal Serv., 2005 WL 756573, at *7 (N.D. Cal. 2005) (holding that "readily reproducible" in a requested format means "readily accessible" by the agency in that format); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 63 (D.D.C. 2003 (construing "readily reproducible" as the ability to duplicate).*fn14

Rule 34 of the Federal Rules of Civil Procedure also addresses the form of production of records, albeit in the context of discovery. The Rule is divided into a series of steps that are intended to facilitate production in a useful format. First, the requesting party may specify the form of production of electronically stored information ("ESI").*fn15 Second, the responding party may object to the specified form; if it does so, it must state the form that it intends to use.*fn16 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.*fn17 The responding party may select the form in which the material "is ordinarily maintained," or in a "reasonably usable form."*fn18 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."*fn19 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."*fn20

B. Case Law

1. Metadata and Load Files

In Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security, Magistrate Judge Frank Maas, of this District, provided a guidebook that explained the various types of metadata and the relationship between a record and its metadata.*fn21 In that opinion, Judge Maas noted that in the second edition of the Sedona Principles, 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 ...

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