Whereas there are now a wealth of decisions discussing the e-discovery obligations of private litigants, comparatively few consider the implications of these decisions for government entities. U.S. District Judge Shira A. Scheindlin of the Southern District of New York, an e-discovery heavyweight, delved into these issues in National Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency (NDLON), a well-publicized decision in which Judge Scheindlin held that the federal government must include metadata in FOIA productions because it constituted an integral part of a public record. To the surprise of many in the e-discovery community, however, Judge Scheindlin withdrew the decision soon thereafter.
Although it remains the case that few courts have squarely considered the issue, a recent opinion by Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia—DL v. District of Columbia—appears to confirm that public litigants can expect to be held to the same exacting standards as everyone else.1 In his colorful decision, Judge Lamberth declined to reconsider a sanctions order in which he had not only directed the District to produce e-mails it had yet made available to the other side, but also decided that the District had waived all objections to production, including those based on attorney-client privilege. Judge Lamberth imposed this sanction after learning, on the first day of trial, that the District was still producing e-mails that it had been ordered to produce years ago and planned to continue rolling productions until after the trial had ended. A “discovery violation of this exotic magnitude,” explained Judge Lamberth, was “literally unheard of in this Court.”2
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