Commission on Law & Technology
|Topic||Self-Collection: A Cautionary Tale|
|Date of Publication||August 27, 2015|
|Applicable DLRPC (Rules)||1.1|
|Summary||As lawyers grapple with shrinking litigation budgets, client opposition to protracted electronic discovery, and their ethical obligations, the challenges of document collection continue to grow. One increasingly risk-filled option is self-collection. Self-collection is the process by which individual custodians identify and collect what they believe may be relevant to the litigation with little to no input or oversight by counsel. While superficially appealing from a cost-saving and time-saving standpoint, self-collection is inherently ill-suited for today's litigation. Self-collection should be differentiated from a collection performed by a client at the direction and with the input of counsel.|
Disclaimer: The purpose of this leading practice is to provide the Delaware Bench & Bar with an understanding of an appropriate manner in which this technology may be used. There may be more appropriate uses; and the leading practice discussed might not be appropriate for a specific purpose. It is up to the individual to use well-reasoned judgment in making that decision. The Commission is not responsible for the consequences of the decision-making process.
Self-Collection: A Cautionary Tale
In Roffe v. Eagle Rock Energy GP, LP, et al, C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010), the Court of Chancery addressed the common occurrence of a party self-selecting the documents to be produced in litigation. The Court's unequivocal response to this approach? "This is not satisfactory." Apr. 8, 2010 Tran. at 9:8. Attorneys should not rely on their client to "search their own e-mail system... There needs to be a lawyer who... makes sure the collection is done properly." Id. at 10:14-15.
The Court of Chancery's admonition was recently echoed by United State District Court Judge Shira A. Schiendlin, who is known for her decisions in Zubulake 1 and Pension Committee. 2 In National Day Laborer Organizing Network, et al. v. United States Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), a case concerning Freedom of Information Act ("FOIA") requests, Judge Schiendlin offered the following commentary on self-collections:
[Defendants] argue that "[i]t is also unclear why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis."
The... answer to defendants' question has emerged from scholarship and caselaw only in recent years: 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.
The Sedona Conference also has advised that "a manual search process for the purpose of finding responsive documents may be infeasible or unwarranted." The Sedona Conference Journal, Vol. XV (2013) at page 224.
The foregoing opinions are clear: attorneys should not abdicate total responsibility to identify and collect potentially responsive documents to their client. Because self-collection falls well short of a best practice, attorneys are encouraged to adopt the following practice tips.
- Delaware Counsel should remain involved in the entire discovery process, paying particular attention to the collection phase.
- Counsel should take steps to properly advise every custodian of their obligation to preserve information potentially responsive to the claims and/or defenses asserted by the parties.
- Counsel should discuss with his/her client's information technology ("IT") department what, if any, electronic equipment used by former, current, or soon-to-be former custodians should be held from possible recycling and/or reuse either internally or through a vendor so that electronically stored information ("ESI") stored in the equipment can be preserved and reviewed for potential production.
- Counsel, or someone working with counsel such as an IT professional, should learn about the types of ESI the organization has stored.
- Counsel, or someone working with counsel such as an IT professional, should investigate to determine where the individuals responsible for producing potentially responsive ESI within the organization are located.
- Prior to meeting with a potential custodian, counsel, or someone working with counsel such as an IT professional, should prepare a questionnaire outlining, among other things, the various areas in which ESI may be stored, the various types of devices ESI may be stored on, and the steps undertaken or to be taken to preserve and produce potentially relevant ESI to counsel.
- Counsel, or someone working with the counsel such as an IT professional, should personally interview each custodian to determine his/her individual storing, saving, deleting, and backup practices as they pertain to ESI.
- Counsel, or someone working with the counsel such as an IT professional, should determine whether a custodian used his/her personal electronic devices to store or transmit ESI potentially responsive to the claims and/or defenses asserted by the parties.
- Counsel, or someone working with the counsel such as an IT professional, may need to physically examine all repositories of ESI in a custodian's personal possession, including, but not limited to, personal devices and computers.
- Counsel, or someone working with the counsel such as an IT professional, should consider whether any storage media should be imaged or otherwise preserved (e.g., imaging a hard drive of a current employee whose ESI may be altered or imaging a hard drive of a former employee to preserve potentially pertinent ESI before the hard drive is recycled for another employee).
- Counsel, or someone working with the counsel such as an IT professional, should consider whether any ESI may exist on out-of-date computer systems or technology that may require specialized assistance to extract.
- Counsel, or someone working with the counsel such as an IT professional, should assess whether the client's IT has sufficient knowledge and in-house tools to defensibly and effectively perform the collection based on parameters developed by counsel.
- Counsel should engage a vendor who is knowledgeable and familiar with forensic collections if counsel determines that the client is not capable of performing an effective collection at the direction of counsel.
1. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) ("Zubulake I"); 55 F.R.S.3d 622 (S.D.N.Y. 2003) ("Zubulake II"); 216 F.R.D. 280 (S.D.N.Y. 2003) ("Zubulake III"); 220 F.R.D. 212 (S.D.N.Y. 2003) ("Zubulake IV"); and 229 F.R.D. 422 (S.D.N.Y. 2004) ("Zubulake V").