The Self-Collection Conundrum
By now, the dangers are well-documented: Corporate entities and their counsel assume certain risks when engaged in the practice of self-collection during litigation. This route is fraught with potential problems: custodians with something to hide, IT staff lacking requisite technical skills, overzealous employees seeking to “protect” the company. Is self-collection necessarily a bad thing? Is it worth it? Should internal resources ever be used?
It might be useful to consider corporate self-collection along a continuum, one that ranges from completely unsupervised collection by a custodian to a sophisticated company-internal IT staff executing explicit instructions provided by outside counsel. Let’s explore the full spectrum:
– On one end of the continuum, there is custodial self-collection, whereby each individual custodian is responsible for identifying, preserving and collecting his or her own data. Custodians may use their email application’s built-in searching capabilities, or worse, only their memory. This is all done with no supervision or suggestion as to how to best complete the task.
– In the middle of the continuum lies a hybrid approach whereby the individual custodian may work in concert with a service provider’s or outside counsel’s professional resources. Each custodian may be tasked with the data collection, but the work may be overseen by an internal IT resource. This is a common approach to take.
– At the opposite end, the collection may be fully managed by outside counsel but executed by corporate IT resources. In this scenario, custodians may have no responsibility for the collection; in fact, they may be totally unaware it is even occurring. But this can be considered self-collection as employees of the corporate entity are actually performing the work.
A collection that is managed and completed by an outside, impartial forensic examiner reduces the risk of challenge. Obviously, the further you move away from a completely unsupervised custodial self-collection, the better (and you should not be anywhere near that end of the spectrum). So why do corporate litigants choose self-collection at all? The lure of potential cost savings is usually the answer. The assumption is that having an outside IT professional consult or perform the work is unduly expensive and that internal IT capabilities are robust enough to handle any computer-related task.
However, collecting for the purposes of electronic discovery is a unique and particular task ‒ likely deviating from the usual course of business for a typical IT staff. Also, internal IT resources may have limited availability; they have regular full-time jobs, after all. The demands of time-sensitive legal needs may conflict with regular business needs, which could put IT staff in a compromising position. While particularly large and litigious organizations can and do decrease legal costs by leveraging internal personnel, such personnel are usually devoted to the sole purpose of supporting litigation activities. Finally, consider whether the company’s own IT staff is the best choice to testify in court should there be a challenge.
What is a corporate client to do? The best advice is to consult with counsel and with your own discovery service providers on each and every matter to determine if the utilization of internal resources is appropriate. Each matter is different. Certain matters will require the use of outside examiners – particularly highly contentious ones, where opposing counsel is more likely to challenge the efficacy of a collection. Seasoned forensics professionals who do this on a regular basis are better trained, more experienced and more efficient completing the specific tasks. While leveraging internal resources may initially decrease the overall legal spend, a flawed and successfully challenged collection strategy is much more expensive. Sound and defensible collections are the ultimate goal – lean on your experts to help determine how to most efficiently achieve that goal.