Many corporate counsels repeatedly express concern that eDiscovery identification, collection and preservation are extremely costly, time consuming and overly burdensome. And to add to these concerns that courts continue to issue punitive sanctions for improperly executed ESI preservation. Is self collection the answer? Given that the volume of ESI continues to expand, alternative approaches to data collection are being considered. But how can a company best protect itself from sanctions given the complexities and cost of this very important function?
Some thought that Predictive Coding alone would be the knight in shining armor that alone would dramatically lower the costs of collecting, processing, reviewing and processing documents, which are all significant steps in the litigation process. In reality, the only way to reduce the overall pain or “costs” is to use all the Technology Assisted Review “TAR” tools available in each major step of eDiscovery within the newly redefined limits of reasonableness and proportionality that were adopted by the FRCP in December of 2015. A partial list of these tools is described below, but the focus of this blog is about Best Practices in Self-Collection.
Tar Tools in Brief
TAR broadly encompasses many different forms of document review technology designed to enable attorney reviewers to work more efficiently and effectively by actually reducing the volume of documents that need to be directly examined. Savvy litigation teams make tactical decisions that consider the use of all the following tools to maximize the effectiveness of Technology Assisted Review.
Preprocessing – ECA
Many large enterprises began moving to self-collection by custodians as a means to limit overall ESI preservation to a controlled set of documents and email that each custodian deemed responsive to a litigation hold. The problem is that most often, these collections are not being performed under a systematic set of universal controls, which ultimately means they are not defensible. When each individual custodian is left to determine what is possibly responsive; without a set of standard parameters that cover things such as search criteria, date ranges and keyword enforcement, the resulting collection is flawed. This common type of self-collection leaves counsel without the confidence that information has been accurately gathered. The average custodian lacks both the legal and technical expertise that is required to properly identify and collect potentially relevant ESI.
A Self Collection Failure
GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016) represents the perils that can arise from custodian self-collection when the company found itself on the receiving end of a $3 million sanctions penalty for evidence spoliation. The heart of the case emphasizes that establishing a litigation hold and notifying custodians are just a partial set of responsibilities that must be deployed in the collection process. Equally important are steps that monitor and insure compliance with the litigation hold.
What they did correctly
Plantronics promptly issued a litigation hold, conducted training sessions, and sent quarterly reminders to custodians requiring affirmative acknowledgment of compliance with the hold.
When did it go off the rails?
In spite of these efforts and strict policies clearly enumerated by corporate, a senior Plantronics executive deleted relevant emails and asked his subordinates to also delete some records.
The court ultimately found that Plantronics acted in bad faith, “intend[ing] to impair the ability of the other side to effectively litigate its case.” In addition to the $3 million monetary penalty, Plantronics also faces severe evidentiary sanctions at trial.
There are some that believe that the best defense is a good offense and therefore, collection, preservation and production should be left in the hands of neutral experts, whose job is solely to comply with all regulations and processes and who are experienced in this area of ESI and who can testify in court when needed. However, this can be costly, and there are alternatives that can be implemented, but only under stringent controls. In order for a self-collection process to withstand a judicial review and be defensible under attack, it must consist of a number of components that are followed consistently.
A defensible self-collection process could occur if the user deploys a flexible software collection tool that would have flexible components that guarantee that collections were uniformly applied in each instance. Powerful software can perform targeted search and identification of the ESI of thousands of endpoints over the internal network without disrupting operations and results can be collected in hours, not weeks. And the software settings can be controlled by one individual, in concert with the counsel, to insure consistency across the organization. And if the parameters must be modified at any point in time, the iterative process can be repeated quickly and consistently.
Documents that have been identified as potentially relevant to a given matter by using a uniform set of keywords and other search parameters across the network are segmented by custodian. Each custodian would then be automatically presented with a set of their documents and emails that the software identified. The software interface then allows them to review and apply tags of relevant, non-relevant and potentially relevant, with NO ability to delete any files. This type of procedure allows custodians to apply insight into their individual collections and flag personal files without taking weeks to “peruse your files for potentially relevant documents”.
All documents marked as responsive to the original uniform search parameters would then be collected for a final review by counsel. Properly implemented, advanced collection software overseen by counsel and deployed by an eDiscovery expert can save organizations millions while improving compliance with eDiscovery rules. With full logging and automatic documentation, self-collection can be made fully defensible while chain of custody is maintained by the software.
A Short List of Guidelines to Further Avoid Sanctions
- Educate all employees, including high-level executives, about the severe repercussions that can result from deletion or failure to properly preserve ESI.
- Consider implementing a focused, additional automatic back-up procedure as soon as the litigation hold is issued to ensure that all ESI is easily retrievable even if one employee disregards the hold.
- If you suspect that ESI has been destroyed, whether on purpose or by accident, immediately and thoroughly explore the issue with a forensics expert, and take all practicable steps to preserve or recover the deleted ESI. Spending a few thousand dollars necessary to complete a forensic review might help you avoid costly sanctions.
- Don’t hide the ball. If all recovery of deleted ESI proves to be impossible, immediately notify opposing counsel and the court, acknowledge the extent of the loss. Even if the court imposes sanctions, the fact that you tried to rectify the situation and notified the court may result in severely reduced sanctions.