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 “Custodian Collection Risks,” we discussed the risks associated with custodian self-collection. In this Part, we review the risks of organization self-collection.
We’ve now seen the myriad ways – from indifference to incompetence to intentional misconduct – that allowing custodians to collect their own materials can increase the risks of downstream issues and negative outcomes. But, what about having internal information technology personnel collect instead? While marginally lower risk than allowing custodians to collect their own materials, having IT carry out organization self-collection is still risky and, potentially, disruptive.
What Are the Risks of Organizations Self-Collecting?
Organization self-collection refers to an approach in which an organization leverages its information technology personnel to perform collection. For example, the administrator of the organization’s email system may perform searches and exports from that system, or IT personnel might be directed to image specific employees’ work computers. The materials collected by IT are then typically turned over to a law firm or a discovery services provider for subsequent processing, hosting, review, and production. While organization self-collection is a less risky approach than custodian self-collection, it is still a risky approach – and, potentially, an expensive one.
Legal Misunderstanding: Just like custodian self-collection, organization self-collection carries the risk that those performing the collection will misunderstand or misapply the legal and factual scope of the matter. Achieving the proper scope of preservation and collection requires nuanced understanding of legal standards and processes, as well as the specifics of the case. As we noted above, expecting non-lawyer employees to clearly understand nuance with which lawyers frequently struggle is a recipe for disappointment and for the omission and potential loss of relevant materials.
Technical Ineffectiveness: Although IT personnel will be much more technically proficient than the average custodian within an organization, proficiency with IT is not the same thing as proficiency with collection or collection tools. Thus, even if the proper legal and factual scope is applied, IT personnel may still execute the process in a technically ineffective manner resulting in materials being missed, lost, or altered, just as with custodian self-collection. IT personnel, too, may design searches ineffectively, execute provided ones incorrectly, or be unaware of specific search and export limitations inherent in different systems. Inadvertent alteration of materials or their metadata is also a very real possibility, if IT personnel are not provided with the correct tools to use or if those personnel are not properly trained in the use of those tools. Just as with custodian self-collection, such alterations may affect the ESI’s usability and its admissibility.
Costs: It is possible for organization self-collection to be performed effectively, but it can be expensive to do so. In addition to the costs of existing staff time or new staff altogether, many of the widely-accepted collection tools are expensive to buy or license, training and certification for the personnel who will use them add additional costs, and many of those costs must be repeated at regular intervals. Larger organizations that are frequent litigants sometimes find it cost effective to create a dedicated internal collection team, with the right tools, training, and certifications, but most organizations find this approach cost-prohibitive compared to hiring a discovery services provider as needed.
Delay and Disruption: Finally, it is worth noting that periodically reassigning IT personnel from their primary duties to undertake collection activities can create delays in collection as well as disruption in the organization. Unless your organization has invested in dedicated internal collection personnel as described above, organization self-collection puts collection responsibilities in competition with existing IT responsibilities. Collection may be delayed to minimize IT disruption (creating an increased risk of loss or alteration in the meantime), or IT may be disrupted to prioritize collection (increasing the effective costs of the effort). Moreover, it is frequently necessary for those responsible for collection to later testify about the collection processes employed, which requires additional disruption to existing IT activities (and which can be challenging for the inexperienced).
Upcoming in this Series
In the next Part, we will continue our discussion of self-collection approaches with a look at what the courts have said about relying on self-collection approaches and what penalties they have imposed when things have gone wrong.
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 fourteen-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.