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The Pitfalls of Self-Collection in Electronic Discovery – A Caselaw Update

A recent decision in an employment case highlights the risks that parties assume when they search and collect electronically stored information (ESI) by themselves. The decision stresses that a search conducted without the supervision of attorneys and technical or forensic experts raises significant questions about the thoroughness and accuracy of the search as well as concerns about spoliated evidence. Therefore, such a search is likely to derail the schedule of the litigation with motions to compel that could lead to sanctions.

April 18, 2024 — by The CODISCOVR Team

A recent decision in an employment case highlights the risks that parties assume when they search and collect electronically stored information (ESI) by themselves. The decision stresses that a search conducted without the supervision of attorneys and technical or forensic experts raises significant questions about the thoroughness and accuracy of the search as well as concerns about spoliated evidence. Therefore, such a search is likely to derail the schedule of the litigation with motions to compel that could lead to sanctions.

Our team routinely designs supported and defensible ESI collection plans for our clients, then either conducts the collection for the client or helps the client conduct the collection themselves while thoroughly documenting each step in the process.

The plaintiff in Tornabene v. City of Blackfoot, 4:22-cv-00180-AKB, 2024 WL 809900 (D. Idaho Feb. 27, 2024) had brought a wrongful termination lawsuit against her employer, the City of Blackfoot, as well as against the City’s mayor. The suit alleged that the defendants had violated federal and state laws by failing to reasonably accommodate her COVID long-hauler’s syndrome which made it impossible for her to work regular, in-person hours.

In their stipulated discovery plan, the parties agreed to perform narrowly tailored keyword searches for ESI but did not specify the keyword search terms.  After plaintiff provided specific Boolean search terms to the defendants, the defendants conducted these searches and apprised the plaintiff that her search terms resulted in over 54,000 email chains. Even though the plaintiff then provided narrowed search terms, the defendants did not conduct an additional ESI search.  Instead, the defendants sought a protective order ruling that they did not have to use the proposed narrowed search terms because even those terms were overbroad and disproportionate. In response, the plaintiff sought an order compelling the defendants production.

In ruling for the plaintiff, the court found that rather than comply with their discovery obligations, the defendants:

  • failed to comply with the parties’ stipulated discovery plan;
  • tasked an employee to conduct the searches and to determine which emails should be produced without the oversight of counsel;
  • only searched the emails of two custodians and did not search text messages;
  • used the Outlook search function as the only means for identifying relevant emails; 
  • represented to the plaintiff that they had produced all responsive ESI only to produce additional emails and texts after the plaintiff had deposed two key witnesses; and
  • did not document the self-collection of ESI.

In ordering the defendants to comply with the stipulated discovery plan and allowing the plaintiff to reopen the two witness depositions at the defendants’ expense, the court explained the significant risks inherent in unsupervised self-collection of ESI, including:

  • failure to identify all sources of responsive information, properly preserve evidence, and provide all responsive documents and ESI to counsel;
  • failure to thoroughly document the search and collection methodology so its appropriateness can be evaluated accurately; 
  • raising significant questions about the completeness and accuracy of the conducted searches; and
  • creating significant risk of successful motions to compel and sanctions.

If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. @CoDiscovr, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information (ESI). Reach out to @nicolegill, Chair, Managing Member CODISCOVR. With almost a decade of experience, she manages complex and high-profile eDiscovery projects and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. 

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