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.
Some organizations actually centrally backup custodian workstations on a regular basis but restoring backups and searching for responsive ESI is also expensive.
What if you could schedule forensically sound backups of all custodian workstations and use those backups of individual custodian’s workstations to discover against, even when those custodians are traveling and not synced to the organization’s infrastructure?
Iron Mountain’s Connected® Classify & Collect solution automatically collects metadata – data describing data, such as date and author – for data stored on your desktops and laptops in a non-intrusive manner. A consolidated metadata repository provides enterprises with an accessible catalog of the types of data and content stored on PC’s. Using flexible metadata selections, administrators can quickly identify information that is relevant to litigation or compliance matters and if necessary, retrieve that relevant data from the centrally managed Connected Backup solution for further review.
Connected Classify & Collect:
- Quickly finds all relevant data across your laptop and desktop systems and reduces the amount of data to be reviewed in eDiscovery matters
- Saves time and money with early case assessment for Discovery activities, helping your organization filter irrelevant data to reduce review time and avoid costly legal battles that can’t be won
- Quickly produces reports that prove the effectiveness of your compliance with privacy regulations
This solution really lends itself to attorney lead collection (and litigation hold) of custodian workstations while also having the additional benefit of backing up all that important ESI every custodian has on their personal machines.
Tags: attorney, backup, classify & connect, connected, court, Custodial, defense, Desktop collection, discovery, e-discovery, eDiscovery, electronic discovery, iron mountain, judge
August 11th, 2010 at 3:30 pm
[...] Another related topic is custodial self discovery. Who would be surprised in learning an employee involved in some wrong doing would ignore a litigation gold request and delete as much responsive ESI as possible? That highlights the question of the defensibility of custodial self discovery. An interesting case was discussed in the blog titled: Custodial Self-Discovery and Common Sense. [...]