This was the subject of a May 21 National Law Journal article, “So, the client wants to search its own records,” I co-authored with Jason Yurasek of Perkins Coie on the risks of self-collection in e-discovery. Do-it-yourself always carries certain pitfalls, but there are myriad reasons why clients choose to self-collect, most notably – at least on the face of it – because it can be faster and cheaper.
When clients opt to self-collect, they place the burden of identification, preservation and collection on their employees – and there are multiple ways employees could make costly errors or misinterpret the attorney’s preservation and collection instructions. Either could warrant a costly re-collection effort, sanctions for non-compliance or both.
The courts have come down heavy-handed against self-collection. See U.S. District Judge Shira Scheindlin’s early admonition to counsel whose client wanted to self-collect in Zubulake v. UBS Warburg LLC, 2004 WL 1620866 (S.D.N.Y. July 20, 2004): “It is not sufficient to notify all employees of a legal hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” More recent judicial decisions have issued stiff penalties for inadequate data retention and collection.
Under Federal Rule of Civil Procedure 26(g), the burden is on the attorney to certify and ensure that the client has conducted reasonable inquiry in discovery matters, with the courts looking to counsel to make sure that their clients are properly trained to undertake a self-collection effort. So when clients insist on collecting their own documents, how can counsel best mitigate risk? Below are four best practices we discussed in National Law Journal:
- Understand what electronically stored information (ESI) is and where it is located in the company or organization.
- Develop a repeatable process for issuing and managing legal holds, including consulting with employees on relevant subject matter.
- Develop a standard protocol for collecting potentially discoverable ESI that will be applied consistently across all matters.
- Document chain of custody to bolster verification of the process.
Outside counsel, with the help of e-discovery experts, can guide those opting to self-collect, working with clients to design and implement repeatable and defensible litigation response procedures. As we concluded in the article, “the investment in a properly designed process far outweighs the lost time and potential for failure of going it alone.”
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