New ruling shouldn’t force use of outside e-discovery vendors

Managing collections internally can be defensible when done correctly.

Courts continue to discourage self-collections during electronic discovery. In Green v. Blitz U.S.A., a product-liability lawsuit around failure to include flame arresters in gas cans, the plaintiff was able to demonstrate that employees may be too biased to accurately self-collect data and documents, especially when these employees themselves are linked to the lawsuit.  The court handed down some fairly severe sanctions; although the $250,000 fine may seem small in a wrongful death case, the additional sanction of requiring the defendant to provide a copy of the court’s order in every case it is involved in during the next five years could definitely prove costly in the long run. This case represents a tipping point, one that requires companies to seriously consider whether self-collection of documents by employees is still defensible.

The alternatives to self-collection appear to be fairly problematic, especially as many companies depend on self-collection for e-mails and other types of electronic documents. If organizations should not employ self-collection, does that mean companies must engage an expensive, third-party e-discovery vendor or law firm to collect and review everything? (This prospect has a number of e-discovery vendors excited.) The short answer is no. If done correctly, companies can still create defensible, in-house collection processes. Here are four key steps to creating such a process:

  1. Centralize access to documents. Much of the self-collection is driven by limitations in accessibility. Many older e-mails, for example, are stored in PST files (NSF files for Lotus Notes) stored on employees’ workstations or laptops. Numerous technologies exist that allow companies to save these e-mails or other types of electronic documents in a centralized archive, or event access and search PST files residing in PST files. Having information in a centralized, searchable archive also avoids having two sets of collections, one by key custodians and the other by IT.
  2. Use nonprejudicial custodians. In Green v. Blitz, the defendant’s “designated collector” also happened to be the development manager for the allegedly defective product in question. Clearly, depending on a custodian like this to self-collect is not defensible. Collections should be managed by employees who are not personally involved, with oversight provided by the company’s legal department. Many organizations teach and enable departmental record coordinators to assist in locating relevant documents.
  3. Depend on technology and processes, not employees. Even well-intentioned employees promise to look for information, but forget. This is especially true for discovery involving large numbers of employees, or when multiple collections requests stack up during a short period of time. Quite simply, employees can be unreliable, adding further to the problems inherent in self-collection. The Sedona Conference goes further, stating that depending on a manual search process to locate documents is both infeasible and unwarranted. It’s better to use a combination of technology, such as an archive combined with a documented, consistent process for ensuring that no data repository is overlooked. Many companies, for example, create ESI content maps detailing what electronic information is where, and they do not depend on the recollections of a few employees.
  4. Audit your results. The courts have been clear that sampling collection and review results can demonstrate reasonable, good-faith efforts. No matter the method an organization relies on to gather relevant ESI, it should sample the discovery results and make refinements where necessary.

Employee self-collection is too risky. Depending on outside e-discovery vendors or law firms for all documents is likely to be too expensive. Fortunately, many organizations are finding that managing collections internally—when done right—can be defensible.

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Mark Diamond

Mark Diamond, Founder & CEO of Contoural, Inc., is a regular contributor to Inside Counsel on Litigation Readiness and Records Information Management. You can e-mail...

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