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W. Lawrence Wescott: To Self-Collect or Not to Self-Collect?

W. Lawrence Wescott

Many companies seeking to reduce the cost of electronic discovery will collect information internally and provide the data to counsel and/or the e-discovery vendor. However, it is critical that the discovery process be appropriately supervised by counsel.

Merely instructing the client or employees to save emails and electronic documents is, in the words of Judge Shira Scheindlin, “only the beginning.”

Judge Scheindlin, author of the landmark Zubulake opinions, added: “[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” Zubulake v. UBS Warburg, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

Seven years after Zubulake, many have not learned this lesson. In Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010), Judge Scheindlin criticized a data preservation instruction which “places total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel.” Similarly, in Jones v. Bremen High School District 228, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill., May 25, 2010), the court found that “defendant directed just three employees (one of whom was at the center of plaintiff’s complaints) to search their own email without help from counsel and to cull from that email what would be relevant documents.”

“It is unreasonable to allow a party’s interested employees to make the decision about the relevance of such documents, especially when those same employees have the ability to permanently delete unfavorable email from a party’s system,” the Jones court added.

In both cases, the courts imposed sanctions because of the discovery failures.

Possibly one of the most egregious discovery failures as a result of self-collection occurred in Green v. Blitz USA, 2011 U.S. Dist LEXIS 20353 (E.D. Tex. Mar. 1, 2011). In Green, a products liability action, the plaintiff asserted that her husband had died as a result of defendant Blitz’s failure to equip its gas cans with a flame arrester. The defendant designated one individual, Larry Chrisco, to search for and collect documents relevant to the litigation.

Although Chrisco educated himself about the case and talked to individuals he felt likely had relevant documents, he never issued a litigation hold, never conducted electronic searches for documents, and never asked the IT department how to search for documents.

Among the documents the defendant failed to produce was an email in which Chrisco was among the recipients. The email was titled “FW: Flame Arrester.”

The court noted that “[p]erhaps more shocking, however, is the ease in which this document could have been discovered and produced in this case. Any competent electronic discovery effort would have located this email. If Blitz performed a word search of the emails of, for example, Larry Chrisco, then this email surely would have been discovered.”

The court added that “Larry Chrisco may have been the most obvious person to have his email electronically searched for information relating to flame arresters. Larry Chrisco headed up the research and investigation around flame arresters.” Id. at 20-21.

Not only did the court order the defendant to pay plaintiff $250,000 in civil contempt sanctions, it ordered defendant to furnish a copy of the court’s memorandum and order to every plaintiff in every lawsuit against it — and, for the next five years, a copy of the memorandum and order must be filed along with the first pleading of every lawsuit in which the defendant is involved, whether as plaintiff, defendant, or any other capacity.

Admittedly, Green is an extreme case. But it highlights the need for counsel to be involved in clients’ discovery efforts. Aside from the obvious conflict of interest that results when one accused of wrongdoing is asked to collect evidence of that wrongdoing, there are other good reasons for proactive involvement by counsel in the discovery process:

• Faulty memory. A discussion between counsel and the custodians of records can refresh the custodians’ memory of the events and may reveal new insights not previously considered by the custodians.

• Additional data sources. Counsel can suggest other data sources not considered by the custodians, such as flash drives, old computers, home computers, or personal email accounts.

• IT involvement. The client may not consider the suspension of IT policies resulting in the automatic deletion of data, such as deletion of email within a set number of days, mailbox size limits, or the recycling of backup tapes.

• Forensic data collection. If fraud is suspected, or a custodian otherwise has incentive to delete data, forensic collection of the custodian’s hard drive permits the possible recovery of deleted information.

• Metadata alteration. Metadata is “data about data” or data which describes characteristics of computer files. Examples of metadata are the date the file was created or accessed (or the record of changes made to a document). If electronic data is not collected properly, the metadata can be altered in the very process of collecting it.

In a perfect world, an independent third party would collect the client’s electronic information, and the attorney could run searches on the data in order to locate relevant documents, in addition to any client collection efforts. This avoids any accusation of bias or self-interest in the collection process, and counsel can control any chain of custody or authentication issues. However, the expense of this effort must be weighed against such considerations as the value of the case — principles of proportionality may justify a decision not to incur the expense. Nevertheless, counsel should be aware of the pitfalls of entrusting e-discovery collection efforts entirely to the client.

W. Lawrence Wescott II, Esq., a former IT manager and database development manager, is an e-discovery consultant. He is currently chair of the Technology committee of the Md. State Bar Association’s Litigation section. He can be reached at wescott_ediscovery@verizon.net.