Self-Collection: Ignorance is Blitz
Faced with the burden of searching and identifying relevant electronic data related to ongoing litigation with a competitor, a CEO determines that the best course of action is to simply leave the assessment of what is “relevant” in the hands of his employees. They will determine relevance, they will determine what they must preserve, they will make the decision to delete any data they deemed irrelevant. If there are search terms to use to identify the relevant documents then the employees can determine what those terms should be and to report back to him with details. He will not issue a formal litigation hold policy nor will he follow up on reminding his employees what data must be preserved. Instead, he will leave it in the hands of his employees. This is not an uncommon practice. In fact, this scenario is often the rule rather than the exception. While self-collection may seem like a cost-effective way to control costs, the risks of relying on employees or outside counsel to self-collect are many. Case in point, Green v. Blitz.
In Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011), the court considered egregious discovery abuse by the defendant Blitz, which withheld corporate communications that would have been material to the case. Plaintiff’s counsel, who represented another plaintiff against Blitz in a different federal court, discovered documents not previously produced over one year after Green and Blitz settled.
The court ordered extensive sanctions against the defendant in the form of $250,000 in civil contempt sanctions and required Blitz to provide a copy of the court’s Memorandum Opinion and Order levying sanctions and detailing the company’s discovery abuse “to every Plaintiff in every lawsuit it has had proceeding against it, for the past two years.” Further, Blitz was ordered to file the Order with its first pleading or filing with the presiding court, “in every new lawsuit it participates in as a party, whether as a plaintiff, defendant, or in another official capacity” for the next five years.
What conduct was so egregious? Blitz had one employee responsible for searching for and collecting electronic documents related to ongoing litigation. The employee described himself as “computer illiterate as they get” in testimony. Furthermore, at no time did Blitz institute a litigation hold of documents or do any word searches for emails. The court found that the violation was willful for several reasons, including the fact that one of the key emails that the employee missed was an email he was a recipient on. The court observed that “any competent electronic discovery effort would have located this email.” The defense argued that under Federal Rule of Civil Procedure 26(g) they were only required to make a reasonable effort to search for and produce documents responsive to a discovery request but the evidence showed that no effort had been made to search email. The methods used to search for email were pedestrian at best and failed to take into account available technology at hand.
In general, the problems with self-collection are many. Employees being asked to self-collect often have a basic misunderstanding of the case and the issues in dispute. Worse, the employees may be asked to make determinations of relevance on documents that point to their own culpability or produce documents that may reveal embarrassing facts about themselves. The biggest complication with self-collection is an employee’s lack of IT knowledge. An employee conducting an email search may unknowingly use the wrong search fields or choose poor search terms. Further, the employee may fail to search in all possible areas where data resides--email archives, social media sites, smart phones, departmental fileshares, PST files, etc.
What should a company do? In Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, The Sedona Conference has advised that parties should view “the use of automated search methods . . . as reasonable, valuable, and even necessary.” Parties should consult with an e-discovery expert to determine the best technological tools and processes to assess and collect responsive documents from their pool of potentially responsive ESI. Experts should also be tapped to develop and test keywords for effectiveness and ensure more defensible search query results.
Further, your employees should be informed about litigation holds and they should be asked to preserve information. But the reliance on employees should be limited to reasonable situations. In cases involving tens of custodians and the exposure to risk is high it might not be reasonable to ask custodians to self-preserve and self-collect. However, in cases where the exposure to risk is negligible, self-preservation and collection may be a good alternative. In any event, never rely on employees to collect where it appears that they are or may be self-interested in a case. And always provide expert supervision of the eDiscovery process.
It is imperative that companies have an effective litigation readiness plan in place, complete with a defensible document retention policy. Not only can this policy help insulate a company against spoliation claims, but it will also allow it to defend itself against claims by ensuring relevant documents are preserved once a legal hold is instituted. Engaging the help of IT and e-discovery experts is always an effective strategy to learn about the types of ESI the organization has stored, the ESI sources and where those sources reside within the organization.
David Weber is General Counsel for Digital Discovery (www.digitaldiscoveryesi.com) and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms. Email him with comments or questions at email@example.com.