Search And Collection Of Data Efforts Critiqued In FOIA Case

Absent showing of sound methodology, Judge Scheindlin finds identification, self-collection, and keywords to be insufficient.

In her latest opinion in the National Day Laborer matter,1 Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York highlights many of the pitfalls encountered in identifying, collecting, searching, and producing relevant information in the discovery process. Although decided under the demanding standard of the Freedom of Information Act (FOIA),2 many of the lessons apply in the context of the Federal Rules of Civil Procedure (FRCP). Judge Scheindlin applies insights from cases decided under the FRCP, noting that "much of the logic behind the increasingly well-developed caselaw on e-discovery searches is instructive in the FOIA search context because it educates litigants and courts about the types of searches that are or are not likely to uncover all responsive documents."

Background

In National Day Laborer, the plaintiffs made a request under the FOIA seeking information from five federal agencies concerning the controversial Secure Communities program. In response to the plaintiffs' requests (and a court order), the defendant agencies performed "massive" searches and made voluminous productions. The parties then cross-moved for summary judgment based on whether those searches (and consequently, the productions) were adequate. To support their motions, each defendant agency filed a declaration describing its efforts. Those declarations varied greatly in level of detail and illustrated a multitude of different approaches. In the end, Judge Scheindlin ordered further action by the defendants, the extent of which was driven not only by the accuracy of the searches performed, but also by the degree to which those search efforts were documented and verifiable.

Scope of Required Searches

Much of the opinion focuses on which custodians' files should be searched. Several of the defendant agencies contended that a reasonable search had been performed when the records of those custodians most likely to have responsive information were searched. The court disagreed, noting that the government is "not required to search only the files of the . . . custodians who are 'most likely' to have responsive records; it must also search other locations that are reasonably likely to contain records." Paralleling her findings in Pension Committee3 and other matters decided under the FRCP, Judge Scheindlin...