The world of business is very hands on. As they say, “If you want something done right and to your benefit, do it yourself.” However, eDiscovery is turning out to be the exception to this rule. Judges have declared that “most custodians cannot be ‘trusted’ to run effective searches”1 and that it is “insufficient…to vest total discretion in the employee to search and select what the employee deems relevant.”2 As judges become better educated about the complexities of collecting electronically-stored information (ESI), in particular the inefficiency of keyword searching, they are increasingly skeptical of self-collection.
eDiscovery is never on the forefront of business discussions because it brings to mind issues of litigation, substantial company losses and bad publicity if it goes wrong. But it is an ever-growing necessity.
Why is eDiscovery necessary in the first place?
With the increasing volume of data present in the workplace—in addition to the evolving workforce—more information is needed to be better managed for preservation, ease of review and distribution. Consequentially, when you have employee turnover and preservation of their workstations or data is required for a multitude of reasons, one being litigation; eDiscovery is the approved method of organizing, searching, filtering and reviewing all that information for relevant and responsive data.
Should eDiscovery be handled in house by its own department?
For companies that aren’t large enough to have their own in-house eDiscovery department, they may decide that the best way to manage eDiscovery issues is by handing it down to their IT department or employees. Believing that getting it done in some fashion is better than not at all.
Recently there was a case that dealt with this issue, Suntrust Mortgage, Inc. v AIG United Guaranty Corp., 2011 U.S. Dist. LEXIS 33118 (E.D. Va. Mar. 29, 2011). This case raised issues when an employee created images of company hard drives as well as “cut and pasted several emails together to effectively create a new email chain.” All of these invasive actions resulted in the court ruling against the producing party on claims of falsification of evidence.3
When handling in house, consider these issues:
1 Khoury, Alex. “Self-Collection In E-Discovery – Risks Vs. Rewards” Online Article. Law 360, 28 Aug. 2017. Web. 9 Sep. 2017 https://www.law360.com/articles/957202/self-collection-in-e-discovery-risks-vs-rewards
2 Linder, Courtney. “Mo’data, mo’ problems: Information systems wrestle with corporate knowledge loss” Online Article. Pittsburgh Post-Gazette, 11 Aug. 2017. http://www.post-gazette.com/business/tech-news/2017/08/11/alcoa-arconic-split-omniview-information-systems-pittsburgh-savvior/stories/201708030040
3 Merlino, Tony. “Self-Collection: The Good, the Bad and the Ugly” Online Article. FindLaw, 9 Dec. 2013. http://technology.findlaw.com/electronic-discovery/self-collection-the-good-the-bad-and-the-ugly.html