In the cult-classic “Weekend At Bernie’s”[1], two young men try to fool others into believing that their murdered boss is still alive, despite strong evidence to the contrary. Of course, trying to keep up appearances with a decaying body gets more and more difficult with time, but they persist. Eventually, they are found out – but in true Hollywood fashion, all ends well.
Have we now reached the same point with end-user based eDiscovery?
End-user or Custodian-based eDiscovery is the practice of relying almost entirely upon end-user employees to identify, preserve and collect data for a specific case.[2] There are good reasons that end-user eDiscovery became popular – it’s relatively easy and quick to create and administer a process; very little (if any) technology needs to be understood, purchased or deployed; and, under the proper circumstances, it can be reasonably defensible. In addition, the process of relying on end-users to preserve and collect relevant information has its roots in the old paper days of discovery, which means that many lawyers are very comfortable with the process.
However, end-user eDiscovery has seen a steady stream of detractors who have pointed out its many flaws.[3] More recently, the number of detractors seems to have grown, and the detractors now include the only group that really matters for eDiscovery – the courts. Recent cases have indicated little patience for a process where legal abdicates its responsibility for eDiscovery to end-users, and many cases have resulted in sanctions.
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Source: Kazeon Blog
By: James D. Shook
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