eDiscovery Daily Blog

Pitfalls Associated with Self-Collection of Data by Custodians: eDiscovery Best Practices

Last week, we covered the Burd v. Ford Motor Co. case where the court granted the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s search and collection methodology involving self-collection of responsive documents by custodians based on search instructions provided by counsel.  In light of that case and a recent client experience of mine, I thought it would be appropriate to revisit this topic that we addressed a couple of years ago.

I’ve worked with a number of attorneys who have turned over the collection of potentially responsive files to the individual custodians of those files, or to someone in the organization responsible for collecting those files (typically, an IT person).  Self-collection by custodians, unless managed closely, can be a wildly inconsistent process (at best).  In some cases, those attorneys have instructed those individuals to perform various searches to turn “self-collection” into “self-culling”.  Self-culling can cause at least two issues:

  1. You have to go back to the custodians and repeat the process if additional search terms are identified.
  2. Potentially responsive image-only files will be missed with self-culling.

It’s not uncommon for additional searches to be required over the course of a case, even when search terms are agreed to by the parties up front (search terms are frequently renegotiated), so the self-culling process has to be repeated when new or modified terms are identified.

It’s also common to have a number of image-only files within any collection, especially if the custodians frequently scan executed documents or use fax software to receive documents from other parties.  In some cases, image-only PDF or TIFF files can often make up as much as 20% of the collection.  When custodians are asked to perform “self-culling” by performing their own searches of their data, these files will typically be missed.

For these reasons, I usually advise against self-culling by custodians in litigation.  I also typically don’t recommend that the organization’s internal IT department perform self-culling either, unless they have the capability to process that data to identify image-only files and perform Optical Character Recognition (OCR) on them to capture text.  If your IT department doesn’t have the capabilities and experience to do so (which includes a well-documented process and chain of custody), it’s generally best to collect all potentially responsive files from the custodians and turn them over to a qualified eDiscovery provider to perform the culling.  Most qualified eDiscovery providers, including (shameless plug warning!) CloudNine™, perform OCR as needed to include image-only files in the resulting potentially responsive document set before culling.  With the full data set available, there is also no need to go back to the custodians to perform additional searches to collect additional data (unless, of course, the case requires supplemental productions).

Most organizations that have their custodians perform self-collection of files for eDiscovery probably don’t expect that they will have to explain that process to the court.  Ford sure didn’t.  If your organization plans to have its custodians self-collect, you’d better be prepared to explain that process, which includes discussing your approach for handling image-only files.

So, what do you think?  Do you self-collect data for discovery purposes?  If so, how do you account for image-only files?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.