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OP I N ION BY DERA J. NEVIN TECH SUPPORT Essential reading Rare U.S. decision defines standards for the production of electronic records. National Day Laborer Organizing Net- work v. United States Immigration and Customs Enforcement Agency is essential reading. Written by U.S. District Court Judge Shira A. Scheindlin, who was also responsible for the seminal Zubulake v. UBS Warburg LLC decisions on parties' preservation obligations, it will likely prove equally influential on production format practice on both sides of the border. The National Day Laborer decision A arose from disputes between the plaintiffs and four government agencies about the form and format provided by the agen- cies following the plaintiffs' Freedom of Information Act request for information about federal immigration law programs. Although the government agencies pro- duced pdf files, the plaintiffs asserted that the form in which these records were produced was unusable because the pdf format delivered was not searchable; the pdfs were stripped of all metadata; and paper and electronic records were indis- criminately merged together into one pdf file. The plaintiffs complained that these deficiencies altered the character and properties of the records produced, and reduced the quality of the information delivered and its usability by plaintiffs and case that defines stan- dards for the production of electronic records is a rarity. Therefore, the recent U.S. decision of their counsel. They asked for searchable pdfs, with a load file that contained meta- data fields associated with the responsive records produced. Scheindlin agreed and ordered the government agencies to make better pro- ductions. She also made three important holdings, one for each of these alleged deficiencies in production format, that have broader implications for electronic production practice. First, she found that native format is often the best form of production, not- ing that where a significant amount of information must be redacted, both static images and the metadata could be redacted and the data produced in image format, such as a tiff file. Second, she found that certain "read- ily reproducible" metadata can be an integral or intrinsic part of an electron- ic record, and must be produced. She endorsed an earlier U.S. decision, Aguilar v. Immigration and Customs Enforcement Division of the United States Depart- ment of Homeland Security, in which Judge Frank Maas commented on "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 producing party." However, Scheind- lin declined to provide specific guidance on which of the many types of metadata is an intrinsic part of an electronic rec- ord, noting only that the answer will 18 M AY 2011 www. CANADIAN Lawyermag.com depend in part on the type of electronic record at issue and on how the records were maintained. Third, she held that all electronic pro- ductions must include load files. After canvassing various sources that discuss which metadata fields are essential and finding no agreement, she ventured to identify what she believes are the min- imum fields of metadata that should accompany any production. Although she acknowledges that the fields she lists may not be determinative in every case, the list is nonetheless an important development in identifying which metadata fields ought to be produced, and which additional fields may need to be supplied (through hard coding) when load files of static images are produced. The National Day Laborer decision has important implications for Can- adian production practice as many of the issues before the court in this case remain unresolved in Canadian law. Although the court rules and/or practice directions of most Canadian jurisdictions provide that a record includes an electronic record, the scope of what an electronic record is has not yet been fully settled in law. Questions remain about whether conversion of for- mat affects the evidentiary integrity of the electronic record and whether metadata is an integral part of the electronic record, such that it must be produced. Moreover, although the holdings in National Day Laborer are consistent with