Collection activities are integral to creating the foundation for all the discovery work that follows. Particularly at a time when legal departments and law firms alike are looking to tighten their belts, collection can seem a tempting place to take shortcuts in the name of savings. Not all shortcuts are created equal, however, and self-collection is one that should almost always be avoided.
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Improper or incomplete collection can undermine preservation, review, production, and authentication – potentially creating a whole host of downstream issues and potential grounds for sanctions. So, how does self-collection increase the risks of these issues and outcomes? Let’s start by reviewing the risks of allowing custodians to collect their own materials.
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We’ve now seen the myriad ways that allowing custodians to collect their own materials can increase the risks of downstream issues and negative outcomes. But, what about having internal information technology personnel collect instead? While marginally lower risk than allowing custodians to collect their own materials, having IT carry out organization self-collection is still risky and, potentially, disruptive.
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The risks and consequences of employing self-collection approaches are not merely hypothetical. For many years, courts have highlighted those risks, have taken parties and their lawyers to task for their reliance on self-collection in the face of those risks, and have applied significant monetary and evidentiary sanctions for failures caused by taking those risks.
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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.
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