Skip to content

MENU

Farrell Fritz, P.C. logo
HomeFarrell FritzSubscribeContact

All About eDiscovery

Case Law & Best Practices

Home » The Perils of Self-Collection

The Perils of Self-Collection

By Farrell Fritz P.C. on September 13, 2018
Posted in ESI, Metadata, Sanctions, Spoliation

“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.

The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside).  For example, outside counsel issues a litigation hold notice identifying various topics and potentially responsive data.   A recipient of that notice undertakes to review his/her paper files, self-designates what he/she deems relevant, and provides that “relevant” content to in-house counsel.  Similarly, the self-collecting custodian may run key words in his/her Outlook mailbox and drag and drop “hits” to a designated folder in Outlook.

Such self-collection efforts, however, are often not an advisable course in any litigation, as the risks and consequences of employing self-collection can be significant.

Time Commitment

Consider for example, the salesperson with a computer who has received a legal hold notice and who is deemed to be in possession of potentially responsive information.   Assuming the individual acknowledges receipts of the hold notice (obtaining an acknowledgment of receipt and an intent to comply can often be a task in and of itself), does the individual have the time needed and interest to commit to a thorough and comprehensive collection?  If not, what are the chances the collection is done well, if at all?

Understanding the Scope of What is Required

Does the individual really understand the legal and factual scope of the proceeding at issue?  Even the most thoughtfully drafted hold notice does not necessarily convey to a non-lawyer unfamiliar with the matter the precise scope of relevant materials.  If the custodian doesn’t understand completely the factual and legal scope of the proceeding at hand, relevant materials may be overlooked.  And, assuming there is more than one custodian undertaking a self-collection exercise, how does counsel verify each self-collector’s respective understanding is consistent with those of other self-collectors?  In other words, custodian A may understand that widgets are clearly relevant, while custodian B understands only certain categories of widgets are relevant.

Technical Know How; Potential Conflict of Interest

Putting aside the timing and factual issues that can undermine a self-collection, do the custodians have the technical know-how to complete a defensible and sound collection?   This concern is, in my opinion, more troubling than the first two issues.  Indeed, the technical rube could inadvertently alter or delete relevant content and metadata, which may ultimately affect the data’s evidentiary value.  Or worse, the ill-intentioned self-collector whose interest may be contrary to the client’s interests, could intentionally omit or destroy content (which, could, potentially lead to spoliation motions and sanctions).

Given the potential risks presented by self-collection, lawyers should think long and hard before allowing it.  In the words of the Honorable Shira Scheindlin, “[s]earching 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…” and “most custodians cannot be ‘trusted’” to effectuate a legally sufficient collection.  National Day Laborer Org. Network v US Immigration and Customs Enf. Agency, (10 Civ. 3488 [SAS] [SDNY 2012]).

(See related post, Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve).

Tags: ESI, Judge Scheindlin, Metadata, Sanctions, Self Collection, Spoliation
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Related Posts
Much Ado About Metadata?
August 8, 2019
The Document Demand That Seeks Electronically Stored Information
July 12, 2019
The Seven Commandments of Proportionality in ESI*
July 19, 2017

Blog Authors Show/Hide

  • Farrell Fritz P.C.
  • Hannah Werthan
  • James R. Maguire
  • Lorraine Sullivan
  • Theresa Spano

Stay Connected

RSS LinkedIn Twitter Facebook

Subscribe By Email

Topics

Archives

Recent Updates

  • Court Sends Signal to Parties Who Spoliated Documents Using Ephemeral Messages
  • If You See Something, Say Something: FinCEN Updates Advisory on Managing Ransomware Attacks
  • Court Reminds Parties That Discovery Orders Are Not a Hoax
  • A Cybersecurity Wake Up Call: SEC Sanctions Eight Firms for Cybersecurity Deficiencies
  • Two-Steps and Voila: How To Authenticate Text Messages

Farrell Fritz Blogs

  • Federal Government Civil Litigation
  • Long Island Land Use & Zoning
  • New York Business Divorce
  • NY Commercial Division Practice
  • NY Health Law
  • NY Trusts & Estates Litigation
  • NY Venture Hub
  • Tax Law for the Closely-Held Business
Copyright © 2023, Farrell Fritz, P.C. All Rights Reserved.
DisclaimerPrivacy Policy
RSS LinkedIn Twitter Facebook
Attorney Advertising
Law blog design & platform by LexBlog LexBlog Logo
Farrell Fritz, P.C. (main office): 400 RXR Plaza, Uniondale, NY 11556-3826 (516) 227-0700