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#CaseoftheWeek Episode 1: Self-collection and Rule 26(g) Obligations

On this episode of ACEDS #CaseoftheWeek, Kelly Twigger of eDiscovery Assistant discusses the issue of self-collection in eDiscovery and Rule 26(g) obligations stemming from EEOC v. M1 5100 Corporation.

Full Episode Details

Hi and good morning, I’m Kelly Twigger, CEO of eDiscovery Assistant and Principal attorney at ESI Attorneys here with you today on our inaugural session of the Case of the Week in partnership with ACEDS. We wanted to bring our community more information about case law that’s happening in the eDiscovery universe and talk about some practical applications of the concepts that are being considered by the courts. 

Jumping right in this week, our case is one that came out in July of 2020. This is a decision from Judge William Matthewman, who is a Magistrate Judge in the Southern District of Florida. If you don’t know Judge Matthewman, you’re going to want to pull up some of his case law on eDiscovery Assistant or and take a look at his decisions on eDiscovery. He’s a very thoughtful jurist and one that we’ve worked with in planning and participating in the eDiscovery Conference that we put on at the University of Florida every year. That’s a conference that as we get closer to in March, we’ll provide that information about. It’ll be a free online virtual event this year. And we look forward to you all participating. 

Judge Matthewman’s decision is the latest in a case captioned EEOC v. M1 5100 Corporation. The key concept in this decision is really the perils of self collection in e-discovery. There’s a blog post that we wrote at eDiscovery Assistant back when the case came out in July, and you can read that here. There’s also a subsequent blog post that my good friend David Horrigan of Relativity wrote also about the case. David is also a Gator alumni and often participates with Judge Matthewman on the Judicial Panel at the UF Conference. So he’s got some great thoughts there, too, and you’ll want to follow up on those. 

So what happened in the EEOC case?

This is an age discrimination case brought by the EEOC based on a termination based on the plaintiff’s age. There were three actual issues that were raised on the motion to compel, two of which were resolved prior to the written decision. The motion to compel was referred from the district judge down to Judge Matthewman for consideration and resolution. And ultimately the case revolved around responses to requests for production. In response to one particular request for production that was signed by defense counsel as being correct and complete, the defendant produced only twenty two documents from two interested witnesses, and the plaintiffs objected and wanted to understand better how the defendant had gone about searching for responsive information.

As we have these case law discussions, it’s always important to remember that we are limited by the facts that are articulated in the decision. It is always the case that there are more facts in a case than a judge puts in a decision and so we can only focus on what is available to us and what the court considers in issuing its ruling. 

In this particular case, when the plaintiffs met and conferred with defense counsel to explain why there were only 22 documents produced on this RFP, defense counsel told plaintiff’s counsel that he did not know how his client had conducted search for the ESI that was produced. That response was particularly troubling to the court in light of Federal Rules of Civil Procedure 26(g).

If you’re familiar with 26(g), you know that even though as lawyers we’ve been signing discovery responses forever, the requirements of ESI and the amendments in 2006 put additional obligations on lawyers with regard to 26(g). Those obligations are that we know, when we sign those responses, that every discovery, request, response or objection has to be signed in our own name and by doing so we’re certifying that to the best of our knowledge, information or belief, and after a reasonable inquiry, (that reasonable inquiry is what’s key here) that that response is complete and correct as of the time that it’s made and it’s done consistent with the Federal Rules of Civil Procedure.

What does that really mean? According to the court here, it means that an attorney has a duty and obligation to have knowledge of, supervise or counsel the client’s discovery, search, collection and production.That’s is the key here, because at least as the facts, as they are stated in the case, seem to suggest that defense counsel really relied on their client to find the information that was relevant for the lawsuit and to forward it. And in employment disputes, that’s not uncommon, right? Many organizations have many, many employment disputes. It’s very difficult to engage in discovery fully for all of them. In this particular situation, though, the court’s issue is that counsel didn’t engage with the client at all in terms of defining the search.

What could they have done differently here to have met their Rule 26 obligations? They could have sat down with the client, done a screen share of email programs, looked at date ranges, made sure you were deciding on specific custodians, specific domains, and/or specific recipients. All those kinds of things would have been ones that would have allowed counsel to engage with their duties, to be involved in the process and to supervise the identification and collection of that information.

Why is it a problem for the court? Why is the court upset that the client undertook self-collection of their own data? Well, in a nutshell, you’ve got two interested witnesses here who were providing information of their own to counsel. And so it can lead to inconsistent, incomplete productions and potential inadvertent or disclosure of evidence. Allowing the defendants just to have their client inspect information was not sufficient in the court’s view. 

Now, what is really important here, and I think if you take an opportunity to read the case and we’ll put the public link from eDiscovery Assistant into the chat here and on the event page, and I want you to take just a couple of minutes to review it. It’s not a particularly long decision, but the way that Judge Matthewman articulates the obligations under Rule 26, the earlier case law associated with self-collection is a really great way for you to see the layout of how courts view what attorneys’ obligations are with regard to counsel and clients on searching for information. This is not a process that has to take very long. We’re talking about under an hour to be able to look at information, to do a screen share for this particular case.

In our current remote environment, we’re now well acquainted with the technology to be able to do that effectively. Also, in this case, it’s important to note that while the plaintiff asked for both sanctions and the opportunity to inspect the defendants ESI. The court looked again at the Federal Rule of Civil Procedure and also at the Sedona Principles and said that Rule 34 really does not allow for inspection of another party’s ESI absent extraordinary circumstances that didn’t exist here.

So the court held off on any sanctions and gave defendants another opportunity to produce that information. What’s key here is that even despite multiple delays from the defendant, the judge still gave the defendants the opportunity to produce that information, but will evaluate costs at a later date and sanctions if the defendants did not comply with their obligations under the Federal Rules.

We talked a little bit about practical takeaways.

I think what’s key here is that even in an employment dispute, whether you’re in-house counsel, outside counsel, whether you’re the litigation support folks responsible for providing information, you need to be able to document what the efforts were that you made to identify and collect information. And what is reasonable in a particular case is going to vary based on the case. But simply allowing the client to make those decisions without input from counsel is not going to be acceptable.

That’s a quick overview of EEOC v. M1 5100. Know and understand your obligations under Rule 26 or your state equivalent and have a plan for each of your cases. Talk with your client. Sometimes clients are reluctant to let outside counsel engage with them for fear that they’re going to collect more data than is needed. That does not have to be the case. Work with them and make sure they understand that your obligations in terms of signing discovery responses require that you supervise efforts to identify and collect information. 

That’s a quick overview of our case of the week, we’re excited to be able to bring this sort of practical application to you on a weekly basis in cooperation with ACEDS. At eDiscovery Assistant.

I’m Kelly Twigger, and I invite you to join us back next week for our weekly update. Thanks.

Watch Next Episode Live

#CaseoftheWeek will be available on the ACEDS YouTube, Facebook, Twitter, and LinkedIn company pages. You’ll also be able to read episode summaries and watch the recorded show right here on the eDiscovery Assistant blog every Thursday.

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