Custodial Self-Discovery and Common Sense

The eDiscoveryJournal, recently ran an article about desktop collection for eDiscovery and mentioned the case of Roffe v Eagle Rock, a case involving custodial self-discovery and expectations from the Judge. The transcript from the conversation between the Judge and both parties of the case can be seen here.

This transcript is interesting in that the judge clearly explains his (and most judges) expectations of the discovery process especially in dealing with custodian’s email accounts and personal computers. In the exchange, one of the defendant’s attorneys explains that he has received some potentially responsive emails from the defendants and is still waiting for some more. To clarify, the Judge asks;

Am I correct that you have been relying on, for the other two committee members, what they self-selected to put in their transaction files, in terms of what you obtained and produced?

The defense attorney answers;

That’s correct, your Honor. I was told that they uniformly would put all of their Eagle Rock e-mails into that folder. I have not checked, and I don’t know whether that is true or whether that is accurate. I believe they are telling the truth, but I don’t know if that is accurate.

In the defense attorney’s answer it becomes obvious that he is relying on the defendants to find and turnover all responsive emails to him and that he has not done any supervisory direction or auditing of the discovery process.

The Judge immediately responds to the defense attorney;

Then here is my ruling. This is not satisfactory. From what you have described to me, you are not doing what you should be doing. First of all, you do not rely on a defendant to search their own e-mail system. Okay? There needs to be a lawyer who goes and makes sure the collection is done properly. So both as to the two directors who already have produced — we don’t rely on people who are defendants to decide what documents are responsive, at least not in this Court. And you certainly need to put somebody on a plane to go out and see Mr. Smith.

So the question for me would be, one, how fast can you do this right? And that means not only the e-mails from Mr. Smith. As I say, somebody should have been on a plane a long time ago to go through his e-mails. And if he chose to use his personal computer, well, that was his bad choice. All right? And if he has it mixed in other stuff that he gets, 150 e-mails a day, or whatever, that was his bad choice. That makes it all the more essential that a lawyer get on a plane, and go and sit down with Mr. Smith, and go through his e-mail and make sure that what is produced is — what is responsive is appropriately produced. And whoever it is better check his auto-delete settings, and they had better find out if these things have been auto-deleting every 30 days or 60 days or 90 days, and they better think through, as somebody properly should have done, whether there needs to be some type of, again, image and forensic check, to make sure that something hasn’t been lost in what sounds to me to be a lackadaisical, unsatisfactory process.

In this exchange, the Judge clearly states; we don’t rely on people who are defendants to decide what documents are responsive. Custodial self-discovery is like the wolf guarding the chicken coop. So for large matters with many custodians with potentially responsive ESI, what can an organization do?

First, the defense attorney should be overseeing the discovery process to ensure it is accomplished correctly. In most courts, the attorney has to certify that the discovery process was done correctly and what attorney wants to do that if they didn’t really manage it?

Second, relying on defendants to find and turn over potentially responsive ESI can be problematic. Most of them will attempt to do what’s right, to the best of their understanding. Those few that could have something to hide may find ways to do a subpar job in the discovery process. If I am the opposing counsel, I am going to want to know if self discovery was relied on. There are a couple of ways to accomplish a custodian-centric discovery. You can image all custodians workstations etc and filter the images for responsive ESI. You can conduct one on one interview with custodians and run search applications on their workstations. Both of these processes are expensive and time consuming.

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