In early July Southern District of Florida Magistrate Judge William Mathewman ruled that the defense counsel’s allowance of their client to self-collect ESI during discovery as failure to make “Reasonable Inquiry” that is detailed in Rule 26(g).
Rule 26(g) Signing of Discovery Requests, Responses, and Objections is the requirement of engagement in discovery in a defensible and responsible way. The rule was created to limit abuse in discovery through the use of sanctions. Discovery is an essential part of the legal process and as a result a party should be given the opportunity to properly prepare and develop their case. Rule 26(g) is brought in when there is a range of issues originating from the handling of ESI and proper collection of data most commonly when there is evidence of spoliation, failure to produce, lack of due diligence, and in this case self-collection.
In the recent case Equal Employment Opportunity Commission v. M1 5100 Corp., the court emphasizes the issues behind self-collection under the section The Perils of Self-Collection of ESI by a Party or Interested Person Without the Proper Supervision, Knowledge, or Assistance of its Counsel stating:
“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. In this case, it appears that Defendant’s counsel left it to the client and the client’s employees to determine the appropriate custodians, the necessary search terms, the relevant ESI sources, and what documents should be collected and produced. When combined with Plaintiff’s assertion that only 22 pages of documents have been produced by Defendant in this complicated age discrimination case, the Court seriously questions the efficacy of Defendant’s search, collection and document production”.
Equal Employment Opportunity Commission v. M1 5100 Corp. Justia (2020)
https://law.justia.com/cases/federal/district-courts/florida/flsdce/9:2019cv81320/558189/41/
The case serves as clear cut reminder of the potential downfall of self-collection and the risks you open yourself up to without oversight of a discovery professional. As a result the best route to avoiding sanctions is to be actively involved in the eDiscovery process. Be proactive to mitigate risks and remove possible exposure areas before they arise through proper evidence collection, preservations and production.