Don’t Let Self-Collection Spiral Into Self-Destruction: The Potential Pitfalls and Risks When Clients Collect their Own Data
Don’t Let Self-Collection Spiral Into Self-Destruction: The Potential Pitfalls and Risks When Clients Collect their Own Datahttps://www.nextpoint.com/wp-content/uploads/2023/01/CSCblog2.png1200700Elizabeth GuthrieElizabeth Guthriehttps://secure.gravatar.com/avatar/ac8ae9c5e7533bbb2b8cb6440229d792?s=96&d=mm&r=g
Read these ediscovery collection best practices to learn why self-collection – or allowing clients to collect their own data – is dangerous.
Picture this: it’s 1988 and you’re at your desk, poring over a veritable encyclopedia of case law. You just sent your paralegal to collect an official notice from the judge in your latest case. They return with a litigation hold requiring the preservation of all the files stored in a certain custodian’s office. What do you do next? Call your client and ask them to haul the documents to your practice? Or send your team over to carefully collect the potential evidence and ensure no spoliation occurs?
When a client collects their own documents for a litigation matter or investigation we call it “self-collection,” and the practice is generally discouraged by courts except in limited scenarios. Self-collection potentially puts both the client’s interests and the lawyer’s practice at risk. In fact, one judge stated the practice “greatly troubles and concerns the Court.” EEOC v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc., Civil No. 19-cv-81320 (S.D. Fla. July 2, 2020)
The client may not fully understand the scope of their legal and ethical responsibilities, which could result in over-collection, requiring more review time and unnecessary expense. Or they may under-collect because of self-incrimination concerns or a conflict of interest. The lawyer may lose credibility when they carelessly certify a client’s self-collection and production effort (FRCP 26(g)) that turns out to be inadequate or inaccurate. While self-collection isn’t inherently a bad practice, self-selection is definitely a problem.
Is the Client Capable of Collecting Their Own Data?
Attorneys may be prone to give their client latitude when it comes to collecting and preserving their evidentiary data for litigation. After all, the clients presumably know their data better than anyone else, and frankly, most attorneys don’t want to take the time and effort to learn about their client’s information systems or badger them with unwanted oversight.
But does the client have time to properly accomplish the task? Does the client have the resources available? Often, the company’s IT professionals are asked to collect data without adequate direction, which means they’re left wondering about the parameters of the collection and relying on their own initiatives.
★ If legal teams don’t follow these ediscovery collection best practices, they run the risk of evidence spoliation and may lose valuable metadata that can streamline document review.
A Lawyer’s Duties in Data Collection
In EEOC v. M1 5100 Corp., the Court stated, “attorneys have a duty to oversee their client’s collection of information and documents, especially when ESI is involved” because “self-collection by a layperson is highly problematic and raises a real risk that data could be destroyed or corrupted.”
“Attorneys have a duty to oversee their client’s collection of information and documents, especially when ESI is involved” because “self-collection by a layperson is highly problematic and raises a real risk that data could be destroyed or corrupted.”
The Court further stated that “parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to conduct responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.”
The Court warned that counsel must take an active role assisting their clients with the search, collection, and production of ESI because counsel is required to ensure that the production is complete and correct at the time it is made (FRCP 26(g)). And if counsel is not comfortable with this duty, the Court stated that the lawyer or the party may “consider retaining an ESIvendor to assist with the process.”
These case opinions (and many more) emphasize the inherent need for legal counsel to be engaged in overseeing the data collection and preservation efforts of their clients, and even bringing in outside expertise and assistance when necessary.
It may be tempting to take the easy route and simply copy an entire mailbox or hard drive from a custodian, but that will ultimately cost more money and require more work. There are times when a wholesale collection is appropriate, but it’s normally a lazy move performed without adequate time spent on crafting a proper ediscovery strategy.
While speed is certainly a consideration, you don’t necessarily have to collect everything immediately. It might be a more prudent approach to identify highly relevant data, or sources that could potentially contain the most relevant data, as well as sources that may contain less relevant data. If you’re pressed for time or under a production deadline, then consider starting a collection with the more relevant sources before moving to the less relevant sources. Just remember that this approach doesn’t negate your duty to preserve the information, even if it’s not yet collected.
4. Create a central repository for storing collected Electronically Stored Information