Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection

U.S. District Court Judge T. John Ward of patent law fame has recently issued an opinion on e-discovery sanctions. Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011). It is an important one to know about. The defendant relied solely on its own employees to find and produce relevant emails, a practice called self-collection. To make matters worse, they put a manager in charge of this effort who fancied himself “about as computer literate—illiterate as they get.” Id. at pg. 12. There are many dangers inherent in self-collection, including good faith omission by inadvertence, laziness, or lack of technical or legal training. But the chief danger is bad faith omission by fraud, by the natural desire of a witness to protect him or herself by not producing incriminating emails. This is the fox guarding the hen house scenario that represents the greatest danger of self-collection.

Many try to mitigate these risks by following a two-fold collection system, one that adds an extra level of protection to self-collection. This is appropriate in cases that are large enough to warrant the additional expenses involved. In such dual protection systems the key custodians still search, identify, and self-collect what they think are relevant emails, but, as a fail safe, IT also collects all of the key custodians’ emails. Then attorneys search and identify relevant documents from this full, uncensored, unfiltered, collection. This double effort guards against the intentional and unintentional mistakes that can sometimes arise in self-collection.

The defense attorneys in Green did not use this double check procedure, even though this was a wrongful death case. They over delegated to the client, much like the lawyers in In re A & M Florida Properties II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010). The client in Green, as in A&M Florida, totally botched the effort. In fact, the court in Green was convinced that key emails were overlooked on purpose. Green v. Blitz U.S.A., Inc, supra at pg. 10.

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Source: e-discoveryteam.com
By: Ralph Losey