EDISCOVERY|DATA PRIVACY CORNER
CLIENT SELF-COLLECTION IS RISKY BUSINESS
ROBERT W. WILKINS
On July 2, 2020, United States District
Judge William Matthewman entered an
Order in Equal Employment Opportunity
Commission v. M1 5100 Corp d/b/a Jumbo
Supermarket, Inc. Case No. 19-cv-81320. The
Order explains the reasons why attorneys
should not allow clients to self-collect
potentially relevant electronically stored
information (“ESI”). Point II of the Order
is appropriately titled “The Perils of Self-
Collection Of ESI By A Party Or Interested
Person Without The Proper Supervision,
Knowledge Or Assistance Of Its Counsel”.
Judge Matthewman went beyond what
was required for his ruling to explain why
allowing a client to self-collect is not only
potentially damaging to the client’s case,
it can also result in sanctions against
the attorney and his client and ethical
violations by the attorney. In particular,
the Order addresses the obligations of
attorneys to their client and the Court to
have the requisite skill and experience to
properly direct and supervise the collection
and preservation of potentially relevant ESI.
Judge Matthewman was greatly troubled
by the failure of counsel to know what
specific search efforts the client made to
collect potentially relevant ESI; to supervise
the client’s ESI collection efforts; and, in
particular, the fact that the two individuals
that searched for responsive documents
were self-interested employees in the age
discrimination case.
The Order first addresses the law regarding
an attorneys obligations relating to
discovery responses.
“The relevant rules and case law
establish that an attorney has a duty
and obligation to have knowledge
of, supervise, or counsel the client’s
discovery search, collection, and
production. It is clear to the Court
that an attorney cannot abandon his
professional and ethical duties imposed
by the applicable rules and case law and
permit an interested party or person
to “self-collect” discovery without
any attorney advice, supervision, or
knowledge of the process utilized.
There is simply no responsible way that
an attorney can effectively make the
representations required under Rule
26(g)(1) and yet have no involvement
in, or close knowledge of, the party’s
search, collection and production of
discovery.”
An attorney’s signature on a discovery
response is not “a mere formality”, it is
a representation to the Court that the
discovery response and production is
complete. An attorney cannot properly make
that representation without having been
involved in the collection and preservation
process. To meet his or her obligations, an
attorney should meet as soon as possible
with the client and the client’s IT person
or someone with knowledge of the client’s
system architecture to map where the
potentially responsive data is located,
including all devices and other repositories.
Once the location of all potentially relevant
data is determined, the attorney must guide
and oversee the collection and preservation
process—typically with the assistance of
outside vendors. The need for a forensically
sound collection process cannot be
overstated.
The case law is clear that self-collection of
ESI by a client raises a real risk that data
could be destroyed (including metadata
in the collection process) or otherwise
corrupted. No one needs to be reminded that
the past ten years have shown how easily
the substantive issues can be overwhelmed
by the “discovery on discovery”, leading
to not only increased costs but, in some
instances sanctions, including adverse
inferences or case dispositive rulings.
Even when attorneys retain outside
eDiscovery vendors to assist in the
collection and preservation of ESI, a best
practice in most cases, the attorney must
have the requisite knowledge to oversee
the vendor’s collection and preservation
efforts. An attorney cannot delegate to the
vendor the attorney’s ethical obligations of
competency and confidentiality. And, the
vendor is guided by the attorney and the
completeness of the collection, preservation
and production falls on the attorney.
A simple way to avoid many of the above
problems is to work with opposing counsel
at the outset of the litigation. Early and
continued cooperation through meet and
confer conferences allows the parties to
attempt to agree on the relevant ESI sources,
custodians, time limitations, whether
search terms or predictive coding or some
combination will be used, and, hopefully, to
agree on an ESI Protocol to assist both the
parties and the Court.
Rob Wilkins is Co-Chair of the E-Discovery
Subcommittee and the Data Breach &
Internet Subcommittee of the ABA Section
of Litigation’s Commercial and Business
Litigation Committee. He is an active
member of The Sedona Conference Working
Group 1, Electronic Document Retention
and Production, and Working Group 11, Data
Security and Privacy Liability
PBCBA BAR BULLETIN 13