The E-Discovery Field Guide
Introducing a New Series in Collaboration with Evidox Corporation: Cost-Effective E-Discovery Strategies for Litigation On a Budget
Litigation budgets will vary with the importance and dollar value of the case at hand. But simply because a lawsuit does not involve multi-million dollar claims or volumes of Electronically Stored Information (ESI) does not mean parties and their attorneys can ignore ESI during the discovery process altogether. Rather, in the digital age where almost all discoverable information exists as ESI, parties should learn to leverage available technologies to ensure compliance with procedural rules, develop an efficient and cost-effective discovery strategy, and meet their client’s discovery obligations. In short, the first step in litigating effectively on a budget is to embrace the available technical resources.
With that in mind, the editors of the E-Discovery Field Guide are excited to announce their new collaboration with Evidox Corporation for a series of articles on an essential topic for clients and attorneys: cost-effective e-discovery strategies for litigation on a budget. As a leading provider of e-discovery services with offices in Boston and Portland, Evidox will offer a firsthand account of trends and technology for implementing cost-effective litigation solutions, while Bernstein Shur will provide guidance based on its experience representing clients and litigating discovery issues in courts around the country.
August 2018: The Hazards of Self-Collecting Electronically Stored Information
The Cost-Effective E-Discovery Strategies For Litigation On A Budget series begins at one of the first steps in the chronology of the discovery process: the preservation and collection potentially relevant ESI for review and production.
ESI exists in a wide variety of locations—computers, e-mail servers, cloud storage, mobile devices, metadata—most (if not all) of which should at least be considered as part of the discovery process for the typical case. Unfortunately, and to their detriment, some parties attempt to fulfill their preservation and collection obligations by asking employees to compile what they believe are relevant e-mails and other ESI, and then transmit those materials to the attorneys for review. While self-identified collection might seem like a quick fix, the practice creates numerous risks and increases the likelihood of unforeseen costs as the matter winds its way through the later phases of litigation.
Below we discuss several reasons why parties should avoid self-collection in most cases. This is not an exhaustive list of potential problems, but it does indicate why parties should think twice before gathering ESI on their own and instead should consider using simple technologies to manage the collection phase of the process.
- High risk of missing relevant document
It is impossible for attorneys to fully supervise a client’s self-collection to a comfortable level of care, particularly when multiple employees and data sources are involved. If a client conducted the collection without proper supervision, the lawyer cannot guarantee that all responsive information has been collected and produced. Different employees also may interpret even the clearest collection instructions differently, resulting in inconsistent practices. Not only are parties likely to fall short of their discovery obligations, but they may also miss documents that are responsive and that even may be helpful to their case. And if the self-collection system fails, courts may be more likely to find that the failure was reckless or even willful (resulting in harsher sanctions). Indeed, it is inherently problematic for a client to ask the same employees potentially involved in the underlying litigation to turn over records of their own conduct (and the same holds when a client’s IT department may have played a role in the dispute but now is being relied upon to collect documents).
- The self-collection lacks standardized specifications
One of the best defenses in a discovery dispute is a written record of the internal discovery process and reliance on knowledgeable advisors. However, when unsupervised employees perform the self-collection, it is impossible to guarantee that everyone followed the same rules, and a client is left open to attack before the court. This is particularly true when a client lacks an IT staff to guide the process internally. The gap in execution not only will weaken a party’s defense if a discovery dispute arises later, but it also makes it harder to be the aggressor in discovery when your own discovery obligations are not met. Indeed, given today’s e-discovery technology, it may be relatively simple for the receiving party to quickly identify gaps in productions from multiple custodians such that an inadequate collection or litigation hold is readily apparent—and problematic.
- The self-collection may modify or even delete metadata
Metadata often is just as valuable as the document itself, and parties generally are obligated to preserve and produce available metadata in discovery. Self-collection, however, creates a substantial risk that metadata will be modified or deleted if employees begin opening or manipulating e-mails or other ESI on their own (such as forwarding e-mails to an attorney or opening and printing a Word document). The better solution is an automated collection that captures all metadata as it exists at the time. Such a broad collection also is more efficient in the long-run by preserving all data such that even data not originally produced still may be searched, reviewed, and produced later without recreating (or redoing) prior collection efforts.
- The self-collection may create new work product headaches
When employees collect and forward documents in response to a request from their attorney, that compilation of otherwise non-privileged materials may become, collectively, work product under the compilation theory, which provides that disclosure of a compilation of documents selected by an attorney could reveal the attorney’s legal theories and case strategy. Not only is there a risk of disclosing that work product to the other side, but the manual collection also may create the need for attorneys to “detach” the original e-mails or documents into separate files to avoid a work product disclosure, which adds an expensive, unnecessary step to the process that automated collection avoids.
- Self-collection is inconvenient and disruptive to the business
If e-discovery concerns do not persuade a client, consider the business implications of self-collection. Litigation is expensive and disruptive as it is, but asking employees to search their files (often from several years; often in various disorganized states) and coordinate collections with attorneys only makes the process more disruptive and more expensive. And that does not even include the potential costs, sanctions, and damages in the litigation itself if irreversible collection mistakes are made.
Except in rare circumstances, manually collecting documents is insufficient to fully meet a party’s discovery obligations and instead will only lead to more problems—and more expenses—down the road. That’s why we recommend that litigants consult with experienced counsel and a reliable e-discovery vendor early in a case to discuss collection options. Not only is this approach likely required by the discovery rules, but it oftentimes is the best and most cost-effective e-discovery strategy.
In the next installment, we will discuss the benefits of the alternative—automated technology-assisted ESI collection—and why it often is not as expensive as parties think.