W. Lawrence Wescott: To Self-Collect or Not to Self-Collect?

Many companies seeking to reduce the cost of electronic discovery will collect information internally and provide the data to counsel and/or the e-discovery vendor. However, it is critical that the discovery process be appropriately supervised by counsel.

Merely instructing the client or employees to save emails and electronic documents is, in the words of Judge Shira Scheindlin, “only the beginning.”

Judge Scheindlin, author of the landmark Zubulake opinions, added: “[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.” Zubulake v. UBS Warburg, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

Seven years after Zubulake, many have not learned this lesson. In Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010), Judge Scheindlin criticized a data preservation instruction which “places total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel.” Similarly, in Jones v. Bremen High School District 228, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill., May 25, 2010), the court found that “defendant directed just three employees (one of whom was at the center of plaintiff’s complaints) to search their own email without help from counsel and to cull from that email what would be relevant documents.”

To Continue Reading: Click Here
----------------------------------------------
Source: thedailyrecord.com
By: W. Lawrence Wescott II