Aguilar v. ICE Division of
Homeland Security
255, F.R.D. 350 (S.D.N.Y 2008)
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
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
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
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
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
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.
Class Discussion
• The 2nd 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?