Many companies are tempted to seek cost savings relating to electronic discovery by conducting some or all aspects of the process in-house. It is undeniably true that these efforts could save significant money in your e-discovery budget. But, as the recent decision in National Day Laborer Organizing Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al. (NDLON) suggests, these efforts are also likely to meet skepticism, or even disfavor, and may result in sanctions, court orders that require duplication of effort or other unexpected costs.
On July 13, Judge Shira Scheindlin issued her opinion in the NDLON case. That case involves a Freedom of Information Act (FOIA) request issued to the U.S. Immigration and Customs Enforcement Agency, the U.S. Department of Homeland Security, the Executive Office for Immigration Review, the Federal Bureau of Investigation (FBI) and the Office of Legal Counsel seeking documents and information relating to Secure Communities, a federal immigration enforcement program launched in 2008. Although this was a FOIA case, Judge Scheindlin recognized in her opinion the similarities between the government’s obligations in responding to a FOIA request and a civil litigant’s obligations in responding to discovery requests. Judge Scheindlin’s decision likely will be cited in future e-discovery cases and will help to shape the law as it relates to e-discovery.
Judge Scheindlin went on to describe what she determined to be a more fundamental defect in the defendants’ collection efforts:
“Most custodians cannot be ‘trusted’ to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching 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.