The Perils of Self-Collection
September 13, 2018
“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.
The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside). For example, outside counsel issues a litigation hold notice identifying various topics and potentially responsive data. A recipient of that notice undertakes to review his/her paper files, self-designates what he/she deems relevant, and provides that “relevant” content to in-house counsel. Similarly, the self-collecting custodian may run key words in his/her Outlook mailbox and drag and drop “hits” to a designated folder in Outlook.
Such self-collection efforts, however, are often not an advisable course in any litigation, as the risks and consequences of employing self-collection can be significant.
Consider for example, the salesperson with a computer who has received a legal hold notice and who is deemed to be in possession of potentially responsive information. Assuming the individual acknowledges receipts of the hold notice (obtaining an acknowledgment of receipt and an intent to comply can often be a task in and of itself), does the individual have the time needed and interest to commit to a thorough and comprehensive collection? If not, what are the chances the collection is done well, if at all?
Understanding the Scope of What is Required
Does the individual really understand the legal and factual scope of the proceeding at issue? Even the most thoughtfully drafted hold notice does not necessarily convey to a non-lawyer unfamiliar with the matter the precise scope of relevant materials. If the custodian doesn’t understand completely the factual and legal scope of the proceeding at hand, relevant materials may be overlooked. And, assuming there is more than one custodian undertaking a self-collection exercise, how does counsel verify each self-collector’s respective understanding is consistent with those of other self-collectors? In other words, custodian A may understand that widgets are clearly relevant, while custodian B understands only certain categories of widgets are relevant.
Technical Know How; Potential Conflict of Interest
Putting aside the timing and factual issues that can undermine a self-collection, do the custodians have the technical know-how to complete a defensible and sound collection? This concern is, in my opinion, more troubling than the first two issues. Indeed, the technical rube could inadvertently alter or delete relevant content and metadata, which may ultimately affect the data’s evidentiary value. Or worse, the ill-intentioned self-collector whose interest may be contrary to the client’s interests, could intentionally omit or destroy content (which, could, potentially lead to spoliation motions and sanctions).
Given the potential risks presented by self-collection, lawyers should think long and hard before allowing it. In the words of the Honorable Shira Scheindlin, “[s]earching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context…” and “most custodians cannot be ‘trusted’” to effectuate a legally sufficient collection. National Day Laborer Org. Network v US Immigration and Customs Enf. Agency, (10 Civ. 3488 [SAS] [SDNY 2012]).
(See related post, Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve).
Have questions regarding data collection in legal proceedings? Please contact me at firstname.lastname@example.org.