A multi-part series on the essentials practitioners need to know about ESI collections
In “Collection and the Duty of Technology Competence,” we discussed lawyers’ duty of technology competence and the importance of understanding collection to fulfilling that duty. In “The Broad Scope of Collection,” we discussed the potential legal and technological scope of collection. In “How Computers Store ESI,” we discussed the operation of computer memory. In “Collecting and Recovering ESI from Computer Memory,” we discussed the technical process of collection. In “The Intersection of Technical and Legal Realities,” we discussed the intersection of that technical process with the legal requirements. In this Part, we start our review of available collection approaches with a discussion of self-collection and its risks.
Self-collection refers to a collection approach in which the custodians themselves undertake the identification and collection of relevant documents from their own materials. Typically, they are doing so pursuant to some instructions and oversight from in-house or outside counsel. 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).
These approaches, and other variations on them, are often undertaken by less frequent litigants with less experience engaging in eDiscovery, and in certain narrow circumstances (i.e., very small, simple matters with no reason to mistrust custodians), they may be a reasonable choice. In most common eDiscovery situations, however, the downstream risks associated with self-collection approaches dwarf the small, up-front project cost savings they offer.
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 self-collection approaches unsuitable for most matters:
Together, these four categories of risk make self-collection approaches unsuitable and undesirable for most matters. As noted above, in very small, simple matters – ones where the materials needed can be clearly identified and easily retrieved, where metadata is not important (or the requesting party has agreed to forego it), and where you have no reason to mistrust the custodians – it may be reasonable and proportional to rely on a self-collection approach. Even then clear instruction and careful oversight will be needed. In all other situations, self-collection should be avoided in favor of one of the approaches we will discuss in the next Part, as courts have made clear time and again.
The risks and consequences of employing self-collection approaches are not merely hypothetical. Courts in numerous cases have taken parties and their lawyers to task for their reliance on custodian self-collection in the face of its clear risks:
As Judge Shira Scheindlin wrote in National Day Laborer:
The second answer to defendants’ question has emerged from scholarship and caselaw only in recent years: most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context. . . .
. . . In short, a review of the literature makes it abundantly clear that a court cannot simply trust the defendant agencies’ unsupported assertions that their lay custodians have designed and conducted a reasonable search. [internal footnotes omitted; emphasis added]
Upcoming in this Series
In the next Part of this series, we will review the next two available collection approaches: in-person collection and remote collection.