1. Aguilar v. ICE Division of Homeland Security 255, F.R.D. 350 (S.D.N.Y 2008)

2. Parties Plaintiff – Adriana Aguilar – 30 Latino plaintiffs that claim ICE performed illegal searches of their homes. Defendant – ICE, Department of Homeland Security – ICE agents and employees who were engaged in Operation Return to Sender – searching for fugitives who ignored immigration proceedings orders to leave the country

3. Facts ICE agents performed early morning searches of homes for fugitives, after receiving voluntary consents to search the homes. Aguilar’s attorney’s, during 26(f) and other encounters, failed to discuss metadata and forms in its discovery requests and did not mention until ICE had almost completed all its discovery obligations. After untimely request for metadata for already produced discoverable material, ICE refused to comply Aguilar is seeking an informal motion to compel production of metadata and information about ICE’s database

4. eDiscovery Legal Framwork Rule 26(f) – Meet and Confer Rule 26(b)(2)(C) – Balancing test of probative vs. burden Rule 34 – Requesting party can request format, responding party can oppose. If no request then as “ordinarily maintained” or “reasonably useable form” Rule 34(b)(2)(E)(iii) – Party need not produce the same ESI in more than one form Sedona Principle 12 – Unless material to dispute no obligation to produce metadata, but take metadata into account for need to produce reasonably accessible metadata

5. Analysis of Case Plaintiffs argue that all the metadata for all the ESI are relevant Emails – P failed to request metadata before D was almost complete; Metadata not needed to manage only 500 emails. Backups – 2-tier process. P failed to show a benefit against the “unquestionably high” burden. Word Documents – P showed only marginally relevant need for metadata, because the already produced documents were in text-searchable PDFs Spreadsheets – D agreed to already reproduce them

6. Issues Regarding eDiscovery “This lawsuit demonstrates why it is so important that parties fully discuss their ESI early in the evolution of a case.” Production of Metadata For Emails already produced – Rule 26(f) – parties must meet and confer and the requesting party must ask for the form in which it wants. Production of Backup Tapes – Rule 26(b)(2)(B) – Is a 2-tiered approach: responding party need not produce not reasonably accessible data, if requesting party then seeks to compel production the court must consider the factors of 26(b)(2)(C) Production of Metadata for Word Documents Spreadsheets already produced – Rule 34 – Parties need not produce the same ESI more than once; In reasonably usable form – Sedona Principle 12 – metadata not obligated, but must comport with enhanced accessibility and functionality it provides

7. Conclusion “[I]f a party wants metadata, it should “Ask for it. Up Front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.” – Taming the Metadata Beast Email – Metadata is not required for custodians who already supplied their emails via forwarding instead of.msg or.pst files. P failed to request metadata. Rule 26(f). Backups – No production. Undue burden with little benefit. Rule 26(b)(2)(B)&(C). Word Documents Metadata – Already provided as text-searchable pdf. D will produce at cost to P. Rule 34(b)(2)(E)(iii), Sedona Principle 12. Spreadsheets Metadata – P already agreed to reproduce in native format.

8. Class Discussion The 2 nd Edition of Sedona Principle 12 “placed greater weight on the enhanced accessibility and functionality that metadata provides to the recipients of ESI.” – What types of metadata would give enhanced accessibility and functionality? – Who should decide whether the metadata meets this threshold? The emails produced did not include BCC recipients. – If produced emails contain To and From information, should it also contain BCC recipients as a default? – And should any other information be included by default?