Custodian-Controlled Collection of ESI

Posted: September 8, 2010

Let us suppose your company is faced with the task of collecting electronically stored information (ESI) in response to discovery in litigation or a governmental inquiry. What should you do? Why not just shoot an email out to the key players and ask them to collect their own relevant emails and other electronic documents? They know their data, and they even may have handy pre-sorted folders that are right on point – time and money saved.

Custodian-controlled collection seems like a viable method to save costs and focus the collection on relevant ESI, but Courts have expressed concern about such methods. Earlier this year, in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec. LLC Judge Scheindlin cited to her own well-known series of Zubulake opinions and sanctioned various plaintiffs for grossly negligent behavior regarding the preservation and collection of ESI, including permitting employees to conduct their own searches and failing to give experienced direction and oversight to the employees’ self-collection efforts. These failures were combined with other deficiencies in the process – making it unclear if any one of them standing alone would have warranted sanctions.

Judge Scheindlin did not elaborate on what additional “oversight” would have been sufficient to cure the deficiencies of the custodians’ collections. Would it have been acceptable if the self-collection process been carefully over-seen by in-house counsel or experienced E-Discovery counsel? Would those attorneys need to peer over the shoulders of the employees during the process? What if the custodians had been provided detailed instructions and training on where to search for ESI and what terms to use? Is the issue lack of consistency in the process, a lack of trust in individual users, or a combination of both?

Other courts have held that relying on employees to determine the scope and nature of their own search and collection efforts is insufficient and that a more systematic methodology is required. One Delaware Chancery Court Judge held that it was wrong for outside counsel to “rely on a defendant to search their own email system” — even where the individual defendants’ maintained a previously established email subfolder related to the transaction at issue. Roffe v. Eagle Rock Energy GP, L.P. The Delaware Judge stated that a lawyer needed to “get on a plane…go sit down with [defendant], and go through his email and make sure that” responsive emails got produced.

Not all courts have been hostile to custodian-controlled collection, but most have not even addressed the issue. No federal, state, or local rule spells out the appropriate method for collecting ESI. Whether a plane ticket for outside counsel is required is a case-specific inquiry and should be part of a larger E-Discovery plan that balances a variety of factors, including the nature of the dispute, the costs and burdens associated with collection options, the available resources, the scope of the discovery, and the agreement of the parties.

For more information regarding collection quandaries, please contact Alison Grounds.