In litigation, allowing a client to handle the process of collecting its electronic discovery without adequate attorney oversight of quality control validation can lead to serious trouble for all concerned. Courts throughout the country have repeatedly held that attorneys have professional and ethical duties to ensure the adequacy of their clients’ actions in identifying, preserving, collecting, and producing electronically stored information (ESI). An attorney’s failure to conduct proper oversight before vouching for the completeness of the client’s ESI collection and production can result in sanctions and can hurt the case. For this reason, eDiscovery practitioners should be prepared to push back against clients who insist they can be trusted to do the discovery collection process on their own without the aid of counsel.
There are valid reasons for a client to want to handle the identification and collection of ESI themselves. We have all seen how expensive eDiscovery can be and how quickly the bills mount. Every billable hour of attorney involvement in the ESI process represents added litigation expense. It makes sense for the client to want to take on this task to keep costs down. The client also may reasonably believe it knows best where relevant discovery is stored and that persons with direct involvement in the creation of the electronic documents or communications at issue are best positioned to locate and collect that material. And the client may approach the task with the best of intentions. However, in modern litigation practice, where ESI usually represents the bulk of the discovery material that will be collected, litigants must understand that eDiscovery expenses are unavoidable. Moreover, allowing client self-collection creates the risk that potentially relevant and discoverable data are excluded, either because of a mistake by, or ignorance of, the person doing the collecting, or, because of the intentional omission of material the collector views as potentially harmful or embarrassing. To be defensible in court, the ESI collection process must be overseen and validated by someone familiar with the minimum standards the law requires. Even the reluctant client typically prefers a competent ESI practitioner sit for a deposition or sign a declaration vouching for its ESI practices rather than having to provide that testimony on his or her own.
Numerous court opinions reveal the perils of allowing a client to collect its own ESI without adequate attorney oversight and validation. Recently, in New York, in Hedgeye Risk Mgmt., LLC v. Dale, No. 21-CV-3687 (S.D.N.Y. July 26, 2023), Magistrate Judge Robert Lehrburger issued serious sanctions including expenses and attorneys’ fees for plaintiff’s discovery violations and misrepresentations concerning the diligence of the plaintiff’s efforts in searching for, collecting, and producing ESI, including text messages. In Hedgeye, the defendants moved to compel the production of the ESI several times and the plaintiff’s counsel made repeated representations to the court attesting to the diligence of their efforts in investigating and collecting the communications at issue. Counsel also repeatedly confirmed that all responsive communications with third parties had been produced following a reasonable and diligent search. However, through further motion practice, it was revealed that outside counsel had not overseen the collection process and, in fact, the laptop computers of the key executive employees had never been searched. When those searches were conducted, thousands of previously undisclosed communications were uncovered. In issuing sanctions, the court specifically pointed out that sophisticated outside counsel well understood the implications of misrepresentations to the court and well knew the obligations in discovery.
Similarly, the court in DR Distributors, LLC v. 21 Century Smoking, Inc., No. 12 CV 50324, (N.D. Ill. Oct. 6, 2022), issued a sanctions award of $2.5 million for defendant’s failure “to make a reasonable investigation to ensure that [it] provided all available responsive information and documents.” DR Distributors had moved for sanctions against 21 Century for failure to timely produce ESI, for spoliation of ESI, and other alleged eDiscovery failures. The sanctions award followed the court’s 256-page sanctions order (DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 861 (N.D. Ill. 2021)) which held, among other things, that defendant’s counsel had blindly accepted the client’s representation that all relevant ESI was stored on four hard drives and, despite knowing about the existence of various websites and email accounts belonging to defendant, failed to ensure that those cloud-based sources were preserved, collected, searched or produced. These failures resulted in the continued operation of automatic deletion processes and in defendant’s failure to produce voluminous relevant ESI. The court also made clear that these ESI failures ran afoul of rules of professional conduct requiring candor to the court and fairness to the opposing party and counsel. As the court bluntly put it: “Counsel must be competent in their knowledge and ability to identify, preserve, collect, review, and produce ESI. Competence pervades every aspect of the ESI discovery process. This is not a new requirement . . . It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on e-discovery compliance because it is technically complex and resource-demanding.” DR Distributors, LLC, 513 F. Supp. 3d at 942 (internal citation omitted)
As these cases and many others from around the country make clear, in today’s eDiscovery practice it is the responsibility of the attorney to be closely involved in overseeing the collection of ESI. Counsel must not blindly accept a client’s representations about the diligence and completeness of his or her collection efforts. Self-collection without monitoring and verification is a bad idea and a recipe for trouble. Moreover, these cases serve as a reminder that in the overwhelming majority of cases, for the collection to be deemed reasonably diligent, sound and most importantly, defensible, the attorney should engage the services of an ESI expert consultant to handle the technical aspects of the process.