Many of our recent requests for eDiscovery training seminars have to do with collection of ESI, and specifically, the dangers of eDiscovery self-collection. These typically come from law firms who routinely are asked by their clients to let Corporate IT collect the ESI. Then they accede to the request and are subsequently surprised either by the volume of ESI delivered to them or by a deposition response identifying some source of ESI not previously disclosed. Outside counsel is looking for ways to manage the risk of client self-collection.
Yet most of our recent requests for eDiscovery consulting come from corporate clients looking to improve their internal capabilities for litigation response planning, litigation hold and internal collection process, tools and training. The impetus to tackle litigation response planning is the repetitive emergency drills to which they’ve been subjected due to case-specific legal hold requirements. Clients are increasingly looking for ways to manage preservation and collection in-house, and without a doubt this trend will continue.
Your IT department should not try manage electronic evidence during internal investigations if they don’t have the experience – even when instructed by the legal department. Watch this On-Demand webinar to learn more about how these teams can collaborate for a more effective process.
Recently, in Brown v Tellermate Holdings, plaintiffs were granted a motion for judgment and for sanctions, primarily because of discovery abuses. The abuses arose because either the client did not disclose or counsel did not inquire into or appreciate the extent to which its client had responsive information it did not produce.
In the more widely publicized Branhaven v Beeftek the court imposed sanctions on both the client and the attorney for failing to make proper inquiries as to the sources of ESI and both intentionally and erroneously certifying discovery compliance with a Rule 26(g) statement.
What can a diligent outside counsel do if his/her client insists on performing its own search and collection? There is a position that outside counsel should take in every case, regardless of who is going to do the preservation and collection.
GO to the client site, meet with general counsel or the business client in charge, and meet with key business clients, ranking IT staff and hands-on IT staff.
INTERVIEW business clients not just about the facts of the case, but also about what email and files they sent and received as part of the facts of the case, what computer systems and resources they use or used for their work, and to document all of that information, and;
SUPERVISE whomever is managing the preservation and collection, whether it is vendor personnel, corporate IT personnel or law firm staff. In fact, if the attorney is ever going to say that he or she audited compliance with a legal hold, it is likely that an attorney will have to visit more than once. It doesn’t hurt to have with you an eDiscovery professional who is experienced in preservation and collection, even if that person isn’t doing the work.
Unless outside counsel has so much experience with a particular client, its computing environment, its capabilities for collection and preservation and the litigation experience and diligence of in-house counsel, IT and key business people, the litigator has to go, interview and supervise in each case. There is no good substitute, and no greater eye-opener. And having that much oversight doesn’t cost that much.
GO, INTERVIEW and SUPERVISE is not a Triathlon requiring months of training or a superhuman effort. It requires only basic litigation experience, some natural curiosity, a little preparation with an interview outline enhanced with questions about ESI, good writing skills, and possibly the company or attention of an eDiscovery professional.
The attorney who will GO, INTERVIEW and SUPERVISE has achieved the discovery trifecta (or maybe a triple play?), a tactical advantage in negotiating scope, a prospective win in any motion to compel or motion for sanctions, and a very good handle on the witnesses, facts and evidence in the case.
For the client who hires that attorney it is nothing less than the Triple Crown: discovery that fits the value and the budget of the case, protection against risks of spoliation, and an attorney working proactively with knowledge about witnesses, facts and evidence.