Self-Collecting ESI Can Be A Dangerous Game

Farrell Fritz, P.C.
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The Honorable Shira Scheindlin once opined against allowing custodians of ESI to collect their data stating “[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]). Recently, another federal Court also cautioned counsel about the dangers of self-collecting albeit this caution was predicated upon the substantial risks attorneys may face when clients self-collect data. Equal Employment Opportunity Commission v. M1 5100 Corp., 2020 WL 3581372 (S.D. Fla. July 2, 2020). These two cases, coupled with counsel’s obligation to be technologically competent,* serve as good reminders of what not to allow.

Background

In M1 5100 Corp., Plaintiff filed a motion to compel “better discovery responses.” In connection with that motion, Plaintiff sought the opportunity to inspect how Defendant’s electronically stored information (“ESI”) was searched, collected and produced based upon (1) a mere 22 page production; and (2) defense counsel’s concession that he did not manage or oversee his clients’ collection efforts. Critically, the individuals responsible for collecting the potentially relevant data were two self-interested employees of the Defendant, who operated without any supervision by, or involvement of, Defendant’s counsel.

In reaching its decision to grant, in part, Plaintiff’s motion, the Court devoted significant effort to the importance and effect under Federal Rule of Civil Procedure 26 (g), of an attorney’s signature on a discovery response. Specifically:

A party’s discovery obligations also include the duty to use reasonable efforts to locate and produce ESI responsive to the opposing party’s requests and within the scope of discovery. To enforce these responsibilities, the attorney’s signature on a discovery response certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information…responsive to the discovery demand and has made reasonable inquiry into the factual basis of his response.

Id.

According to the Court, because counsel cloaked Defendant and its employees with unfettered discretion in determining (i) custodians, (ii) search terms, (iii) ESI sources, and (iv) what documents to collect, counsel failed to exercise the requisite supervision. The Court further identified as “very problematic” counsel “sign[ing] off on the completeness and correctness of his client’s discovery responses” when, in actuality, the attorney exercised neither supervision nor involvement in the process. According to the Court, such discovery practices are rife with concerns including incomplete discovery productions and the destruction of responsive information.

In spite of these discovery failures, the Court acknowledged that “[i]inspection of an opposing party’s computer system under [FRCP] Rule 34 and state equivalents is the exception and not the rule for discovery of ESI.” Therefore, and in part due to the parties being ahead of the discovery deadlines, the Court gave Defendant’s counsel an opportunity to comply with its discovery obligations and directed “Defendant’s attorneys [to] counsel and supervise Defendant and Defendant’s employees during the discovery search, collection, and production process and become knowledgeable of that process.” In conclusion, the Court advised that it “intend[ed] to closely supervise the discovery process” to ensure counsel complies with all discovery obligations.

Conclusion

This case is a good reminder to counsel that we cannot simply delegate discovery to clients. Rather, we must actively participate in and supervise all aspects of discovery. Moreover, a counsel who delegates discovery as here likely cannot comply with his/her obligations to participate meaningfully in a 26(f) conference, which should be embraced as an opportunity to reach agreement and engage in a cooperative discovery process that will promote proportionality.**

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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