Federal Judge: Custodian Self-Collection of ESI is Unethical and Violates Federal Rules of Civil Procedure

By John Patzakis

In E.E.O.C. v. M1 5100 Corp., (S.D. Fla. July 2, 2020), Federal District Judge Matthewman excoriated defense counsel for allowing the practice of unsupervised custodian ESI self-collection, declaring that the practice “greatly troubles and concerns the court.” In this EEOC age discrimination case, two employees of the defendant corporation were permitted to identify and collect their own ESI in an unsupervised manner. Despite no knowledge of the process the client undertook to gather information (which resulted in only 22 pages of documents produced), counsel signed the responses to the RFP’s in violation of FRCP Rule 26(g), which requires that the attorney have knowledge and supervision of the process utilized to collect data from their client in response to discovery requirements.Gavel and books

This notable quote from the opinion provides a very strong legal statement against the practice of ESI custodian self-collection:

“The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production. It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized. There is simply no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1) and yet have no involvement in, or close knowledge of, the party’s search, collection and production of discovery…Abdicating completely the discovery search, collection and production to a layperson or interested client without the client’s attorney having sufficient knowledge of the process, or without the attorney providing necessary advice and assistance, does not meet an attorney’s obligation under our discovery rules and case law. Such conduct is improper and contrary to the Federal Rules of Civil Procedure.”

In his ruling, Judge Matthewman stated that he “will not permit an inadequate discovery search, collection and production of discovery, especially ESI, by any party in this case.” He gave the defendant “one last chance to comply with its discovery search, collection and production obligations.”  He then also ordered “the parties to further confer on or before July 9, 2020, to try to agree on relevant ESI sources, custodians, and search terms, as well as on a proposed ESI protocol.” The Court reserved ruling on monetary and evidentiary sanctions pending the results of Defendants second chance efforts.

A Defensible Yet Streamlined Process Is Optimal

EEOC v. M1 5100, is yet another court decision disallowing custodian self-collection of ESI and underscoring the importance of a well-designed and defensible eDiscovery collection process. At the other end of the spectrum, full disk image collection is another preservation option that, while being defensible, is very costly, burdensome and disruptive to operations. Previously in this blog, I discussed at length the numerous challenges associated with full disk imaging.

The ideal solution is a systemized, uniform and defensible process for ESI collection, which also enables targeted and intelligent data collection in support of proportionality principles. Such a capability is only attainable with the right enterprise technology. With X1 Distributed Discovery (X1DD), parties can perform targeted search and collection of the ESI of hundreds of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance by maintaining metadata, generating audit logs and establishing chain of custody.

And in line with the Judge’s guidance outlined in EEOC v. M1 5100, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. For a demonstration or briefing on X1 Distributed Discovery, please contact us.

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Filed under Best Practices, Case Law, collection, eDiscovery, ESI, Uncategorized

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