Convenience and Catastrophes of Self-Collection
Navigating through discovery to find affordable and time-saving efficiencies is now more important than ever. As the number of employees working remotely has dramatically increased during the COVID-19 Pandemic, attorneys are looking to alternative solutions for data collection amid challenges of reduced budgets and limited access to workplace assets and staff. In this scenario, a compelling alternative might lead one to custodial self-collection. Consider the benefits of self-collection against the risk of compromising potentially admissible data and jeopardizing a court-defined responsibility, and the answer becomes evident: the high cost of the short-cutting discovery far outweighs any potential for convenience or cost savings.
Experts have declared their warning on the risks of self-collection and judges have issued sanctions for abuse, or mishandling over the process, for years. Still, attorneys continue to make the same mistakes of assigning the task to self-interested employees; failing to supervise the process; delivering corrupted metadata because of the way it was collected, and the list goes on.
Whether the attorney asks the client’s employees to preserve, search, identify and collect their own data, or the internal IT staff performs the final step, self-collection remains a questionable practice. The process of preservation and collection roll-up to a matter of competence, ethics, and duty of candor in their “obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection and production.”1
These issues were demonstrated clearly in the recent case of EEOC v M1 1500 Group. Presiding Judge Matthewman of the United States District Court for the Southern District of Florida, reprimanded the defense attorney for his oversight of the collection process, citing their failure to exercise the requisite supervision. According to the Court, the surmounting “concerns over self-collected discovery are validated through incomplete discovery productions and the destruction of responsive information.”
Fortunately, Judge Matthewman extended another opportunity to collect the data but, also suggested the defendants hire a legal service provider to remedy the problems caused by self-collection and deliver a valid dataset to the plaintiffs. Further, the Court advised its intention to “closely supervise the discovery process” to ensure counsel complies with all discovery obligations.
All things considered, cutting corners at any phase of discovery can be a compromise of catastrophic proportions. Without the proper actions in place to support self-collection process, one is subject to judicial sanctions, ethical violations, or the invalidation of potentially responsive records. A prudent and more practical approach would be to leverage the right technology early in the process and streamline your workflow or, entrust service professionals with existing tools and certifications to complete collections confidently and thoroughly.
1 Federal Rule of Civil Procedure 26(g)(1); ABA Model Rule 3.3; and, commentary about Rule 26(g) from the Advisory Committee Notes, case law, and the Sedona Conference Working Group on Electronic Document Production.