“Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

“Self-collection” is often viewed as prohibited.  Abraham Maslow said that: “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”   

This blog addresses a methodology designed by Ralph Losey, Esq., through which self-collection may be defensible.  At bottom, Ralph¹Together with Jason Baron, Ralph and I co-edited “Perspectives on Predictive Coding” (Amer. Bar Ass’n. 2016). suggested that first, a comprehensive backup copy be made.  Then, a custodian may self collect, if given instructions about what and how to collect, under counsel’s supervision.  Finally, depending on proportionality, there may be review by counsel of the backup copy. 

The self-collection problem was explained by Daniell K. Newman in Attorney Oversight in Electronically Stored Information Collection (natlawreview.com)(Jan. 3, 2024):  

“In litigation, allowing a client to handle the process of collecting its electronic discovery without adequate attorney oversight of quality control validation can lead to serious trouble for all concerned….  The client … may reasonably believe it knows best where relevant discovery is stored and that persons with direct involvement in the creation of the electronic documents or communications at issue are best positioned to locate and collect that material. And the client may approach the task with the best of intentions….  [However, to] be defensible in court, the ESI collection process must be overseen and validated by someone familiar with the minimum standards the law requires.” 

Daniell K. Newman in Attorney Oversight in Electronically Stored Information Collection (natlawreview.com)(Jan. 3, 2024).

Mr. Newman cited Hedgeye Risk Mgmt., LLC v. Dale, No. 21-CV-3687 (S.D.N.Y. July 26, 2023), and DR Distributors, LLC v. 21 Century Smoking, Inc., No. 12 CV 50324, (N.D. Ill. Oct. 6, 2022), in support of his conclusion that: “Counsel must not blindly accept a client’s representations about the diligence and completeness of his or her collection efforts. Self-collection without monitoring and verification is a bad idea and a recipe for trouble.” 

Unsupervised self-collection has long been criticized.  For example, in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 629-30 (D. Col. 2007), “Land O’Lakes directed employees to produce all relevant information, and then relied upon those same employees to exercise their discretion in determining what specific information to save,” however, “Land O’Lakes’ General Counsel took no independent action to verify the completeness of the employees’ document production,” resulting in spoliation. The Cache La Poudre court stated that lay employees do not have sufficient knowledge to make relevancy determinations and noted that they may have an incentive to fail to produce information.   

I described additional self-collection cases about a decade ago in  Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011), and again a few years ago, in Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021)(citing Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020)). 

Self-collection presents known risks.  However, proportionality should always be a consideration in all aspects of e-discovery.  And, as Mr. Newman correctly points out, “adequate attorney oversight of quality control” may make self-collection reasonable.  

The more important question is how to provide that oversight. 

The Advisory Committee notes to Fed.R.Civ.P. 26 state: 

The duty to make a “reasonable inquiry” is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. [citation omitted]. In making the inquiry, the attorney may rely on assertions by the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances. 

Rule 26(g) does not require the signing attorney to certify the truthfulness of the client’s factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer’s certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33.

See 1983 Advisory Committee Note to Subdivision (g) of Fed.R.Civ.P. 26 (emphasis added). 

In my 2011 blog, I discussed an approach developed by Ralph Losey in Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection | e-Discovery Team to reach that goal. 

Ralph described a two-tier system that provides substantial additional protection where self-collection is proportionate and may be appropriate.  He wrote: 

Many try to mitigate these [self-collection] 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. [emphasis added]. 

Ralph Losey, Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection | e-Discovery Team.

After discussion of Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011), Ralph concluded: 

Unlike some commentators, I think that reliance on self-collection alone is sometimes  justified. It depends on the case and proportionality principles. It also depends on whether legal counsel is supervising the effort….  Without legal counsel guard dog to growl and bark, the fox can easily sneak around in the dark. [emphasis in original]. 

Ralph Losey, Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection | e-Discovery Team.

Certainly, appointing a person with a personal stake to perform unsupervised self-collection may be imprudent.  However, Ralph wrote that: 

In the right case, where you have no reason to suspect a fox is in your midst, and you have a legal watchdog around, there may be no need to incur the additional expense of full IT collection and attorney review. This kind of fail safe, double review method is expensive. It is a good practice to be sure, and may be required in large cases, but it should not be an automatic requirement in all cases. 

Ralph Losey, Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection | e-Discovery Team.

Ralph applied his two-step method with attorney review to large-value cases.  However, in low-dollar cases, one could envision self-collection as the primary means of collection, review, and production – –  with a prior comprehensive collection by someone else that is available as a back-up if the initial methodology is successfully challenged.  One additional safeguard, especially in a low-dollar case, could be spot checks by counsel, instead of full attorney review.  See Self-Identification and Self-Preservation: A Fool for a Client? 

While there might be some delay in the event of a “re-do,” the risk of spoliation could be markedly reduced by the back-up copy.  To play off Ralph’s analogy, even if the collecting employee was a nefarious fox, the chicken coop was preserved by I.T., and, except for some delay, there is no harm, no foul (or fowl?). 

Of course, even with a dual collection, the custodial collector must be given guidance and parameters by trial counsel.  As far back as 2007, the Sedona Conference wrote that: “Self-collections by custodians may give rise to questions regarding the accuracy of collections if directions and oversight are poor or non-existent.” The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, (June 2007), 58 (emphasis added).  According to The Sedona Guidelines: 

“Under its policy, a potential producing party enlists the assistance of its employees or agents who are identified as possibly having relevant information by informing them of the nature of the controversy and the time frame involved, and by providing them with a method of accumulating and updating (where disputes are ongoing) copies of the relevant information. The appropriate  individuals are instructed to preserve relevant information for the duration of the controversy and steps are established to follow up with the identified individuals and secure the information. The organization has likely fulfilled its obligations.” 

“Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age,” (2d ed. 2007), 49 (emphasis added). 

I suggest that: 

[One] key factor is to precisely define what “self-[collection]” means. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,” Towne v. Eisner, 245 U.S. 418, 425 (1918).  Self-preservation may include no, or varying degrees of, involvement by counsel.  It could be performed by a self-described “computer illiterate,” as in Green v. Blitz, or by sophisticated personnel. It could center on a case involving allegations of dishonesty or one presenting a commercial argument over virtually undisputed facts among people of unquestioned integrity.  And, the person conducting the search might, or might not be, the target of the allegations of wrong-doing. 

Michael Berman, see Self-Identification and Self-Preservation: A Fool for a Client?   

Combined with a comprehensive back-up and thorough written instructions to the collector, in appropriate cases, custodian self-collection may be a reasonable and proportionate solution. 

For example, if information on a custodian’s iPhone is at issue, counsel could supervise Craig Ball’s Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional. | Ball in your Court (craigball.net)(Jul. 16, 2017).  Craig describes “one simple, scalable and defensible method to preserve iPhone content.”²Craig points out that certain information, such as email, iTunes, Apple Pay, and other information won’t be backed up.  Counsel or the I.T. department could take possession of the back-up copy.  Then, with instructions and guidance from counsel, the custodian could select what is responsive to discovery.  Counsel might spot check as a validation.  If the opposing party makes a prima facie showing of a failure to produce responsive information, the back-up could then be searched.   

Similarly, a custodian’s email could be exported to a PST file, the PST safeguarded, and then self-collection from the “live” file, with clear parameters from counsel, may be reasonable.  In the event of a biased or nefarious collection, the PST file provides a safeguard. 

I suggest that proportionality, reasonable precautions, and the needs of the case are key considerations in this context. See Self-Identification and Self-Preservation: A Fool for a Client? 

And, of course, cooperation,³Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation. transparency, and an agreement with opposing counsel (if possible) is always the safest course of action.  I have never seen a case in which counsel made and performed an agreement but was later sanctioned. 

Notes

• 1
  Together with Jason Baron, Ralph and I co-edited “Perspectives on Predictive Coding” (Amer. Bar Ass’n. 2016).
• 2
  Craig points out that certain information, such as email, iTunes, Apple Pay, and other information won’t be backed up.
• 3
  Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.