No enterprise wants to be the next to endure a highly publicised fall

In past blogs I’ve discussed a number of cases that have expressed skepticism over the self collection of electronically stored information (ESI) in the electronic discovery process. In many of these cases, the reviewing judge or magistrate has looked at this process with an increasingly jaundiced eye, in some cases using the self collection component as part of its rationale for sanctions.

My conclusion up until now has been that this collection methodology (where employees manually select and potentially harvest their own data) could be defensible if properly executed; meaning with the requisite level of attorney guidance and oversight. And, while this is still technically accurate, I think the pendulum has swung far enough to proclaim that this approach is simply far too dangerous for most enterprises, except perhaps those that are extremely risk tolerant.

While there was no particular straw that broke the camel’s back, the trend in the case law now seems to be moving inextricably in one direction – i.e., that self (or manual) collection is no longer safe enough for average enterprises. Just like tight rope walking without a safety net, self collection protocols aren’t inherently doomed to failure, but there isn’t much (probably any) margin for error.

In the recent case of Green v. Blitz U.S.A., (E.D. Tex. Mar. 1, 2011) we see yet another example of self collections gone awry. In Green the Plaintiff sought to re-open her lawsuit despite a prior settlement, once she suspected that the defendant had failed to produce relevant ESI. Finding that defendant had committed numerous discovery abuses, including not disclosing relevant evidence and failing to properly issue a litigation hold, the court put the hammer down, issuing a wide range of sanctions:

  • Defendant had to pay plaintiff $250,000
  • Defendant had to provide a copy of the court’s order to plaintiffs “in every lawsuit proceeding against it” for the past two years
  • Defendant had to file the court’s order in every case that it is involved in for the next 5 years.

Self collection was again a material culprit in the culpable behavior. It was revealed that the employee “solely responsible for searching for and collecting documents relevant to litigation” issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents. To exacerbate matters, the main individual in charge of collections was also closely tied to the research and development of the “flame arresters” that were at issue in this exploding gas can case.

Adding fuel to the fire (pun intended) was the fact that the responding company failed to locate or collect emails with the search term “flame arrester.” The court went on to note that some of the smoking gun emails not only contained this “most obvious term to search for in electronic documents in this case”, but in fact “flame arrester” was used in the title of certain emails.

While folks have called this practice an example of a “fox guarding the henhouse,” in my mind it’s less that custodial bias renders self collection too risky for prime time. While there are certainly examples like the Green case where bias likely was an issue, the bigger problem is that any significant reliance on custodians to direct a collection process (even a well supervised one) has too many failure points.

The most obvious (and innocent) scenario is where custodians simply can’t remember if they had responsive ESI or where such information might reside. This problem can be particularly acute given the fact that litigation is almost always conducted in the rear view mirror. Since I often can’t remember what I had for breakfast I don’t find it surprising that a custodian might not recall if they had data relating to a discrete issue 4-5 years ago.

As such, the contemporary “best practice” for the collection of ESI is quickly evolving past the old manual collection workflow. Technology is rapidly making it quick and painless to conduct searches for blatantly relevant ESI (like emails with “flame arrester” in the title).

Not only can you conduct basic searches with existing technologies, but recent advancements around concept search and other analytical tools makes the failure to leverage these technologies seem that much more unreasonable. For example, in the recent case of Northington v. H&M Int., (N.D. Ill. Jan. 12, 2011) the defendant was sanctioned, in part, because they didn’t search for minor misspellings of the plaintiff’s name.

When a court sees manual blunders like that in the Green case it’s not surprising to see such missteps cast as at least negligent and perhaps even more culpable. This conclusion is made even easier when organizations like the Sedona Conference (in its Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery) state: “[i]n many settings involving electronically stored information, reliance solely on a manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.”

Green is now the latest in a line of cases [See also, Ford Motor Co. v. Edgewood Properties Inc., (D.N.J. 2009) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., (D. Utah 2009)] that have been highly critical of self collection efforts by individual custodians. The better practice is to utilize technology to conduct collections from key players and perhaps leverage the custodians (and technology) to point out where relevant ESI might exist.

As such, a belt and suspenders approach is undoubtedly the safer way to go. In this “dual protection” scenario “key custodians still search, identify, and self-collect what they think are relevant emails, but, as a fail safe, IT also collects all of the key custodians’ emails. Then attorneys search and identify relevant documents from this full, uncensored, unfiltered, collection. This double effort guards against the intentional and unintentional mistakes that can sometimes arise in self-collection.”

We know that electronic discovery is never going to be a perfect process, but self collections simply inject too much risk into an already complicated process. Now is the time to change tactics and stop tight rope walking without a safety net. After all, no enterprise wants to be the next to endure a highly publicized fall.

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Dean Gonsowski is a licensed member of The Sedona Conference Working Group on Electronic Document Retention and Production (“WG1”), the Electronic Discovery Reference Model, and teaches a series of CLE courses on various e-disclosure topics. Dean also serves as VP of E-Discovery Services at Clearwell Systems, where he helps enterprise customers deploy best practices as they bring e-disclosure in-house.