Do-It-Yourself eDiscovery?
Often we think the goal of technology is to allow us to do things ourselves which before required training or expertise. Digital photography is a great example. The photos and video most of us can take with our phones today require much less skill and a much lower cost to produce than when film was the only option. Not to say there isn’t a high level of expertise involved in creating the best digital photography, but technology does so much when it comes to leveling the playing field for the amateur.
This mindset, however, does not apply to eDiscovery, particularly when it comes to the self-collection of electronically stored information (ESI). It’s not that custodians can’t self-collect, because, like digital photography, technology allows pretty much anyone the ability to do so. It’s more a question of should you self-collect.
Florida Magistrate Judge William Matthewman’s ruling on E.E.O.C. v. M1 5100 Corp. earlier this year was a clear reminder that collection without the supervision of counsel is not acceptable. According to the summary of this age discrimination case by Doug Austin, editor-in-chief of eDiscovery today, “defense counsel allowed two employees of the client to identify and collect ESI” in response to requests for production “with no oversight from counsel at all,” even though they signed off on the RFP, which violated FRCP Rule 26(g).
“The Court is not impressed”
Citing previous case law [In re Abilify (N.D. Fla. Dec. 7, 2017)] which states “self-collection by a layperson of information on an electronic device is highly problematic and raises a real risk that data could be destroyed or corrupted,” Judge Matthewman wrote in his ruling:
“In the case at hand, it is very clear that Defendant’s employees self-collected ESI in order to respond to Plaintiff’s document requests without sufficient attorney knowledge, participation, and counsel…. And, the Court is not impressed by the repeated delays in production that have occurred in this case by Defendant.”
What comes next has become a long-standing trend in eDiscovery case law: the courts pushing for both parties working together in order to properly produce the requested ESI. Judge Matthewman writes, “The discovery process, particularly when ESI is involved, is intended to be collaborative,” but again warns that discovery must be supervised by counsel. He then concludes the ruling by noting the extraordinary times the COVID pandemic has put on everyone and gives the benefit of the doubt to the Defendant’s counsel that they didn’t act in bad faith, but states the “Court does not want to see these problems continue. The Court also directs Defendant’s counsel to impress upon Defendant that it must promptly respond to discovery or it will be subject to sanctions. The Court expects to see no more discovery delays.”
Technology Should Enable Collaboration
The first Federal Rule of Civil Procedure says the overall goal is a “just, speedy, and inexpensive” resolution to disputes. Too often, technology focuses on speed and cost-savings, which are important; however, in the end the most important is justice.
5 years ago now in the 2015 Year-End Report on the Federal Judiciary, US Supreme Court Chief Justice John Roberts stated:
“Lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes…. They have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship.”
In light of these statements and the continued holding up of cooperation and collaboration by the courts, eDiscovery technology should be created with a focus on how it enables collaboration between all stakeholders. Between law firms and their clients. Between in-house counsel, outside counsel, and any 3rd party vendors that may have been employed. And, maybe most importantly, between opposing parties.
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