Stipulation and Order on Format of Production

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Case 1:10-cv-03488-SAS Document 97
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Filed 06/17/11 Page 1 of 6

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ECFCASE 10 CV 3488 (SAS)

SJ1fYLATIONA,ND ORDER WHEREAS, on April 27t 2010, National Day Laborer Organizing Network, Kathryn O. Greenberg Immigration Justice Clinic Qfthe Benjamin N. Cardozo School ofLaw, and Center for Constitutional Rights (collectively "Plaintiffsj filed a complaint ("the Complaint"), seeking the release of certain documents by United States Immigration and Customs Enforcement ("ICEU), the United States DePartment of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), the Executive Office for Immigration Review ("EOIR"), and the Office of Legal Counsel (''OLe'') (collectively "Defendants"), pursuant to the Freedom of Information Act, S U.S.C. § SS2 ("FOlAn);

Case 1:10-cv-03488-SAS Document 97 Filed 06/17/11 Page 2 of 6
WHEREAS, the allegations in the Complaint concern, Inter alia, Plaintiffs' FOIA
requests dated February 3,2010 (collectively, the "FOIA Request"); WHEREAS, on February 7, 2011, and February 14, 2011, the United States District
Court for the Southern District of New York (the "Court") issued orders (the "Orders") regarding the Conn and fonnat in which records responsive to the FOIA Request must be produced (Docket ## 41, SO);
WHEREAS, on February 21,2011, Defendants rued a Notice ofAppeal of the Orders to the United States Court of Appeals for the Second Circuit (Docket # 63) (the "Appeal");
WHEREAS, the parties have conferred and resolved their dispute regarding the form and format of future productions ofrecords responsive to the FOIA Reqnest;
WHEREAS, in light ofthe parties' resolution oftheir dispute regarding form and ronnat ofproduction. the Court has indicated that, upon dismissal ofthe Appeal, it intends to issue an order withdrawing the Orders (the "Order of WIthdrawal',), and to enter this Stipulation and Order; and
WHEREAS, the parties have agreed to a dismiss the Appeal pursuant to Rule 42(b) ofthe Federal Rules of Appellate Procedure to permit the Court to enter the Order ofWithdrawal and this Stipulation and Order, without prejudice to re-instatement ofthe Appeal if the Court does not enter the Order ofWithdrawal and this Stipulation and Order;
IT IS HEREBY STIPULATED AND AGREED, by and between the parties, that records responsive to the FOIA Request henceforth shall be produced as follows:
1. Any responsive, non-exempt records shall be produced in Portable Document Format ("PDF,) files. Prior to production, Defendants shall apply Optical Character Recognition
("OCR") software to each PDF file in order to render them searchable.

Case 1:10-cv-03488-SAS Document 97 Filed 06/17/11 Page 3 of 6
2. All pages within each PDF file shall be consecutively Bates numbered. 3. AU PDP files shall be named using the beginning Bates number oithe dooument. 4. A,.txt (UTexf') file for each PDF file shall be produced, and each Text file shaD be named using the beginning Bates nwnber of the document Text files shall be created using Adobe Acrobat or equivalent OCR software. S. Defendants shall exercise best efforts to maintain existing parent-child relationships - for example, a "parenf' email and accessible "child" attachments to that e-mail­ and produce those documents sucb that the parent and its corresponding children appear as consecutive PDP files within a Bates range (for example: parent, child, child), No affirmative steps sball be taken to separate a parent from its corresponding children during processing of documents or release ofdocuments. 6. Excel spreadsbeets sha)) be produced in accordance with the foregoing parasrapbs. Hidden rows and colwnns within an Excel spreadsbeet must be exposed prior to converting the native (.xls) tile to a PDF document. The parties agree to continue to negotiate in good faith concerning the production ofa sample of Excel spreadsheets in native format, in instances where Plaintiffs identify individual spreadsheets warranting further review, and such spreadsheets contain DO infonnation exempt from production under FOIA. 7. E-mail records shall be produced in accordance with the foregoing paragraphs. Defendants need not conduct a search ofeach individual e-mail solely to asoertain whether that e-mail contains a blind carbon copy ("BCC',); however, upon discovery that an e-mail contains a visible BCC field, Defendants shall not take any affirmative steps to conceal that BCCfield, except to redact that Bee field as eKempt ftom production under FOJA. Any such redactions shall be clearly visible on the face of tho produced PDF file.

Case 1:10-cv-03488-SAS Document 97 Filed 06/17/11 Page 4 of 6
8. Defendants agree to provide Plaintiffs with information concerning the organization of documents'within eacb production. FBI and ICE shall use best efforts to organize documents by topical areas, subject to further good faith discussions between the parties concerning the most efficient organization of productions.
9. To the extent that electronic documents have been collected or are collected on a going-folWard basis in an electronic format in connection with the Plaintiffil' FOIA Request, sucb documents shall continue to be preserved in an electronic format.
10. The parties agree that the Court shall retain jurisdiction over any controversy or claim arising out ofor relating to this Stipulation and Order.
11. This stipulation is for settlement pmposes only and applies solely to future productions in the above.captioned case. The stipulation not precedential with respect to any FOIA request or FOIA litigation. Bntry by Defendants into this Stipulation shall not be construed as an admission or concession that the form and fomat ofproduotion specified herein is "readily reproducible," pursuant to 5 U.S.C. § SS2(a)(3)(B), with respect to Plaintiffs' FOIA Request, or any other FOIA Request.
12. This Stipulation contains the entire agreement between the parties, and any statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their oounsel that are not included herein shaJi be of no force or effect.
13. This stipUlation may be executed in counterparts. Facsimile signatures shall constitute originals.

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Dated: June J.5., 2011
New York, New York
~ ~StER' '.' . ::---:
PETER L. MARKOWITZ Kathryn O. Greenberg Immigration Justice Clinic Benjamin N. Cardozo School ofLaw 5S Fifth Avenue New York, NY 10003 Tel: (212) 290-0213 Fax: (212) 790·0256
Attorneysfor NDLON and IJC
SUNITA PATEL GITANJALIOUTIER.RBZ Center for Constitutional Rights ("CCRn) 666 Broadway, 7tf1 Floor New York, NY 10012 Tel: (212) 614-6439 Fax: (212) 614-6499
Attorneys/or CCR andNDLON

PRBBT BHARARA United States Attorney for the Southern strict ofNew York
A~ oroq:ARM ~'Ch
.CO 0
STOPHER CONNOLLY RISTOPHBR B. HARWOOD Assistant United States Attorneys 86 Chambers Street, 31'11 Floor New York, NY 10007 Tel: (212) 637-2761 /2745/2728 Fax: (212) 637-2786


Case 1:10-cv-03488-SAS Document 97
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Filed 06/17/11 Page 6 of 6

Mayer Brown LIP
1675 Broadway New York, NY 10019 Tel: (212) 506·2500 Fax: (212) 262·1910
Attorneys for NDLON

Dated: New York, New York
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Stipulation and Order on Format of Production