Self-collection is a concept that makes ediscovery professionals shiver. ESI is hard — how to identify sources where responsive information lives, and how to craft search terms or other filters to pull data for review and production are complex and not for the faint of heart. Bad decisions can undermine your entire case. And letting your clients do it means they 1) don’t have the knowledge and experience to do it right, and 2) they can choose what to provide and potentially leave out responsive information. Add in heightened requirements from the FRCP for lawyers signing off that all responsive information has been produced, and you have a recipe for disaster.
The latest ruling from Judge Matthewman in the Southern District of Florida is a sharp reminder of the perils of allowing your client to decide what ESI should be collected in discovery. If you don’t know Judge Matthewman, you should. He’s a regular at the University of Florida eDiscovery Conference and one of the most thoughtful judges on the bench on ediscovery issues.
In EEOC v. M1 1500 Group, issued on July 2, 2020, defense counsel allowed two employees of the client to identify and collect ESI to respond to requests for production with no oversight from counsel at all. Despite no knowledge of the process the client undertook to gather information, counsel signed the responses to the RFP’s in violation of FRCP Rule 26(g). Upon receiving only 22 pages of documents “in a complicated age discrimination case”, plaintiffs moved to compel and sought “the opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of its counsel.”
In words no lawyer ever wants to hear, the Court found that “this issue of self-collection of discovery documents without adequate knowledge, supervision or participation by counsel, greatly troubles and concerns the Court.” The Judge then reviewed the tenants of Rule 26(g) and accompanying case law, and citing Cache La Poudre Feeds, LLC, In re Abilify and the Sedona Principles and found:
Attorneys have a duty to oversee their client’s collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to conduct responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.
Applicable case law informs that ‘self-collection by a layperson or information on an electronic device is highly problematic and raises a real risk that data could be destroyed or corrupted.’ In re Abilify, (Aripiprazole) Prod. Liab. Lit., 2017 WL 9249652 (N.D. Fla. 2017). 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. This is improper and a practice that can lead to incomplete discovery production or even inadvertent destruction of responsive information and/or documents. The Court is especially concerned that Defendant has produced only 22 pages of documents total in this case and that two self-interested employees allegedly collected the responsive documents and information.
Fortunately for defendants, time was on their side. While the Court was “not impressed by the repeated delays in production” from Defendant, with five months remaining in discovery, the Court denied Plaintiff’s request to inspect how Defendant’s ESI was searched, collected and produced. Citing the Sedona Principles, the Court noted that “Inspection of an opposing party’s computer system under Rule 34 and state equivalents is the exception and not the rule for discovery of ESI.” Defendants were given one last chance to comply with their discovery obligations and the Court set a schedule for the parties to meet and confer and set up a process for responding.
But Judge Matthewman went one step further — and it’s a step that is very, very necessary to creating cost efficiencies in ediscovery — and required extensive collaboration between the parties to agree on relevant ESI sources, custodians and search terms as well as a proposed ESI protocol. He required the meet and confer to be “robust, completed in good faith, and must take as long as necessary to fully address all discovery search, collection and production issues.” The Court then called for sanctions to issue for failure to comply, and even suggested that that counsel consider retaining an ESI vendor to assist with the process if necessary.
It’s always difficult to read between the lines in court decisions, but this case appears to present a situation that happens every day — a lack of knowledge or consideration for the need to address the ediscovery process by counsel on one side of the equation. Had the parties negotiated an ESI protocol early on in this matter, this motion practice would have been averted. The prejudice to one party of documents produced late in discovery can never be adequately remedied as witness and deposition preparation depend on having all the materials in front of you at the time. And it’s often hard to convince the court for more time. But to do so requires cooperation from both sides, and that’s not always forthcoming. This case illustrates that counsel’s job is not only to meet the FRCP requirements when responding to discovery, but also to be knowledgeable enough about ediscovery issues to know when opposing counsel isn’t doing their job.