In an era of increased cost-consciousness, relying on self-collection can seem like an appealing savings, but it can also lead to dramatic downstream complications and costs
In “A Shortsighted Shortcut,” we discussed why getting collection right is so important. In this part, we review the risks associated with custodian self-collection.
As we discussed, collection activities are integral to creating the foundation for all the discovery work that follows. Improper or incomplete collection can undermine preservation, review, production, and authentication – potentially creating a whole host of downstream issues and potential grounds for sanctions. So, how does self-collection increase the risks of these issues and outcomes? Let’s start by reviewing the risks of allowing custodians to collect their own materials.
What Are the Risks of Custodians Self-Collecting?
Custodian self-collection refers to a collection approach in which the custodians themselves undertake the identification and collection of relevant documents from their own materials. For example, they might review their physical records and turn over any relevant paper files to a designated recipient in the in-house counsel’s office, or they might review their stored electronic files and place copies of relevant materials in a designated storage area on the organization’s network (or move relevant emails to a designated folder in Outlook).
Custodian self-collection approaches carry four categories of risk that can each lead to spoliation sanctions, authentication and admissibility issues, and other negative consequences, which is what makes custodian self-collection approaches unsuitable for almost all matters:
Generic Inaction: The first category of risk you run when leaving collection to the custodians is that they simply may not do it. Employees are busy doing their normal job duties, and most do not understand the importance of preservation and collection the way lawyers do. It is not uncommon to have to chase employees down just to get them to acknowledge receiving a legal hold. Asking them to execute a complex, time-consuming collection process is likely to go right to the bottom of their to-do list. And, even if you eventually get everyone to act on your instructions, the delays before action can lead to the loss or alteration of relevant materials through normal work activities, automated janitorial processes, or system or device failures.
Legal Misunderstanding: The second category of risk you run when leaving collection to the custodians is that they will misunderstand or misapply the legal and factual scope information you give them in your instructions. The scope of preservation and collection is defined through the interaction of a nuanced legal standard, the pleadings and discovery requests of the parties, and the facts known at the time. The scope of relevance (and, thus, of collection) frequently evolves over the course of discovery as legal disputes are refined and more factual knowledge is gained. Expecting non-lawyer employees to clearly understand nuance with which lawyers frequently struggle is a recipe for disappointment, and expecting that nuance to be consistently applied from employee to employee is even more so. And, when employees misunderstand or misapply the scope you’ve tried to set, relevant materials can end up omitted or lost altogether.
Technical Ineffectiveness: The third category of risk you run when leaving collection to the custodians is that – even if they perform the requested collection and apply the scope guidance as you intended – they may still execute the process in a technically ineffective manner resulting in materials being missed, lost, or altered. For example, custodians asked to run keyword searches to locate relevant materials (in email, or their local files, or enterprise systems they use) may design them ineffectively, or execute provided ones incorrectly, causing relevant materials to be missed entirely. Minor changes to search syntax or search settings can make major differences in the results returned, and syntax and settings vary from system to system. Moreover, ESI materials and their metadata are easily altered by almost any interaction with a file. Custodians working without write blockers or other forensic tools cannot maintain forensic soundness or perform hash validation. Some metadata will be altered, which may affect the ESI’s evidentiary value, its authentication, or its admissibility.
Intentional Misconduct: The final category of risk you run when leaving collection to the custodians is that they will engage in intentional omission, alteration, or destruction of materials to conceal their own actions. There are many situations in which your custodians’ interests may run counter to your organization’s. They may be responsible for some part of the events giving rise to the matter and fear getting in trouble themselves, they may be engaged in some unrelated misconduct they are afraid may be exposed, or they may think they’re protecting a colleague or the organization. Whatever the reason, when custodians are trusted to self-collect they have the opportunity to commit sins of omission or spoliation. And, even if they do not take that opportunity, another party may challenge the reliability of collection performed by a custodian with an individual interest in the matter or the materials.
Upcoming in this Series
In the next Part, we will continue our discussion of self-collection approaches with a look at the risks of organization self-collection.
About the Author
Director of Education
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A thirteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.