In an era of increased cost-consciousness, relying on self-collection can seem like an appealing savings, but it can also lead to dramatic downstream complications and costs
In “A Shortsighted Shortcut,” we discussed why getting collection right is so important. In “Custodian Collection Risks,” we discussed the risks associated with custodian self-collection. In “IT Collection Risks,” we discussed the risks of organization self-collection. In “The Courts on Self-Collection,” we discussed two examples of what the courts have said and done about self-collection. In this final Part, we review three more such examples.
We’ve now seen in Leidig v. BuzzFeed and NDLON v. ICE that the risks and consequences of employing self-collection approaches are not merely hypothetical. One self-collection failure resulted in evidence preclusion, and the other resulted in substantial additional discovery. Let’s conclude our discussion of self-collection risks with a look at three more case examples.
Ultimately, the magistrate judge concluded that the search process employed by the defendants was not “a good faith search for the electronically stored information.” As sanction, the court ordered the defendants to:
. . . pay for Plaintiff’s reasonable attorney’s fees and the expenses associated with Continuum’s forensic examination of Defendants’ computer equipment, and for filing and litigating the motion to compel and all other motions and hearings associated with retrieving and searching Defendants’ computer files.
Moreover, due to the other evidence of defendants’ “bad faith” discovery conduct, the magistrate judge recommended the application of a permissive adverse inference jury instruction.
Subsequently, the Court allowed full discovery into the facts respecting the alteration of emails. The trial on the merits was postponed. That discovery consumed several months. Briefing on the merits and of the sanctions issues was very extensive. The Court conducted several hearing on related discovery issues. And, there was a three-day evidentiary hearing.
. . .
The quantum of discovery time, briefing, exhibits, forensic examinations, and hearings bespeak the expenditure of hundreds of thousands of dollars (perhaps more) in legal fees and expenses. [emphasis added]
Ultimately, additional altered emails were discovered, and the court found that the employee had perpetrated a fraud on the court for which the plaintiff was responsible. The court also determined that “[t]he handling of the matter by [the plaintiff’s] in-house counsel and its management . . . constituted an abuse of the litigation process” and that “in-house counsel, as well as its senior management, were willfully blind.” As sanction for the fraud and abuse, the plaintiff was ordered to pay defendant’s “very significant additional legal fees and expenses” that were incurred to “preserve the integrity of the judicial record.”
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