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: