A Legal Precedent for e-Discovery Under the Freedom of Information Act

A Legal Precedent for e-Discovery Under the Freedom of Information Act

Judge Judy Scheindlin of the US District Court recently ruled on the case of the National Day Laborer Organizing Network and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law v. the U.S. Immigration and Customs Enforcement Agency, Department of Homeland Security, and the FBI. In this case, the plaintiffs were seeking information from these government agencies regarding “Secure Communities,” a federal immigration enforcement program. The plaintiffs allege that some of the records they requested, and were entitled to under the Freedom of Information Act (FOIA), were not produced by these government agencies.

The current legal standard for FOIA requires that an agency must “show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” These searches must be reasonably defined to identify and locate responsive documents. The question then becomes, what constitutes a reasonable search and to what extent can agencies be relied upon to perform their own searches? Previous case law stipulates that agencies must “identify the searched files and describe at least generally the structure of the agencies file system, which renders any further search unlikely to disclose additional relevant information” (Katzman v. Central Intelligence Agency).

The following is a summary of the search methods employed by the three defendant agencies:

  • Immigration and Customs Enforcement Agency: The FOIA office compiled search instructions that listed 8 “suggested” search terms and specified that searches must include the “full text of documents.” The agency did not address the use of connectives or Boolean search operators and did not provide the actual search terms used by the custodians.
  • Federal Bureau of Investigations: The FBI indicated that the majority of their search was conducted manually. The agency issued an internal search memorandum but did not specify recommended or mandatory search terms and did not instruct custodians to search archived records.
  • Department of Homeland Security: The agency recommended 8 search terms but did not require that they be used. Supervisors at the agency did not monitor the use of these search terms and relied upon the custodians to perform appropriate and effective searches.

In this case, the motions of the defendants and the plaintiffs were granted in part and denied in part. Judge Scheindlin took into account the search methods employed by these agencies and came to the following conclusions:

  • The Court will not be able to establish adequacy of FOIA searches without a detailed description of the search including the search terms used, how it combined them, and verification that the custodian searched the full text of the documents. In this case, some of the defendants’ searches were deemed adequate, others inadequate, and for some, the Judge was unable to establish adequacy based on a lack of documentation.
  • There is a need for some level of cooperation between the agencies and opposing counsel to determine appropriate keywords and the necessary reliance on additional tools such as latent semantic indexing (LSI), statistical probability models, and machine learning tools to produce responsive documents.
  • As the agencies are more familiar with their work than the Court or the Plaintiff, they are entitled to “some degree of deference” regarding their search locations
  • Most custodians cannot be relied upon to run effective searches because performing legally sufficient searches for FOIA requests is not part of their daily responsibility.
  • Plaintiffs must be reasonable in their demands for documents and government agencies must respond adequately to these requests.
  • The court will continue to supervise this process by providing the means for resolving disputes

This case has set a significant precedent for government agencies subject to FOIA requests. While Judge Scheindlin concedes that government agencies should, to some extent, be given the benefit of the doubt regarding the choice of appropriate custodians and searches, she stresses the importance of communication with opposing counsel and thorough documentation. FOIA places the burden on defendants to establish that they have performed an adequate search. For this reason, Judge Scheindlin states that custodians will not be trusted to perform adequate searches unless they provide a complete written description of those searches. Agencies can show this by submitting affidavits that contain a reasonable amount of detail regarding their search criteria and chosen custodians. If these agencies continue to provide inadequate responses, it will likely lead to further litigation, increased costs, and a weakened reputation. It will be interesting to see how this order affects the e-discovery collection process for government agencies.

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