When the costs of eDiscovery skyrocket because of your data volumes, it’s tempting to ask your employees to take the lead in collecting their own data. After all, everyone knows how to handle email, right? How hard can it be?
But keep in mind that not all employees are technically savvy, and it’s likely that they’ll make mistakes in the preservation and collection process. You might be opening yourself up to potential liability if you leave this important responsibility to custodians who aren’t experts in IT, much less eDiscovery.
The Risks of Self-Collection
The biggest risks with self-collection in eDiscovery are inexperience with technology and a scenario akin to the fox guarding the henhouse. To give you a sense of how these concerns play out, consider a classic 2011 case from the Eastern District of Texas, Green v. Blitz.
After the trial in this products liability case, the plaintiff learned that the defendant failed to produce documents, including emails and other electronically stored information, during discovery.
Problematically, the company’s lawyer delegated the responsibility for looking at documents to an employee in the product development department who described himself as “computer illiterate.” The company’s lawyer reviewed the court pleadings and discovery requests with this employee to help him understand the relevant materials. In turn, the employee met with potential custodians and asked them to bring him documents. The employee never instituted a legal hold, ran a search for electronic documents, or talked with his IT team about how to search for documents.
The court found that the defendant’s conduct violated its discovery order requiring the production of all documents relevant to the lawsuit. Further, the defendant’s counsel had ratified this behavior by certifying that the defendant had made a complete disclosure of documents.
The company had also asked its employees to routinely delete ESI: the head of IT encouraged them to “delete all old emails,” although the company was defending multiple product liability lawsuits at the time. Exacerbating the problem, the company also rotated its backup tapes biweekly, so any deleted ESI was permanently lost.
The court ordered the defendant to pay the plaintiff $250,000 in civil contempt sanctions for its discovery violations and required the company to share a copy of the court’s order imposing sanctions with every party it had faced in lawsuits over the last two years as well as in every subsequent proceeding for five years.
While the Green case may seem extreme, it is not the only instance where self-collection has gone awry. Yet, these cases don’t mean that self-collection is never the right solution. It’s just a solution that is best implemented under the guidance of experienced legal counsel or an eDiscovery provider that will closely monitor the process and ensure it doesn’t go off the rails.
The key in deciding the extent of self-collection to permit in your case is to consider the tradeoff: a less expensive data collection vs. the risks of having to redo discovery or of the court finding discovery processes indefensible—or even sanctionable.
For guidance on how to keep the costs of data collection in check, get in touch.