There is an ongoing debate about who should conduct ESI collection. This is critical, primarily because if collection is done improperly, it could lead to inadmissibility at trial, sanctions or both.
I’m going to start by discussing self‑collection by custodians. In the past, this was an acceptable best practice, and may still be acceptable in some courts. However, in my opinion, it is no longer a best practice. In fact, Judge Scheindlin in the Pension Committee case (and others) frowns on this approach.
Another collection method is for a client’s lawyers to perform the actual collection of ESI. I do not recommend this as a best practice either. Collection by law firm personnel creates risks in exposure that outweigh the collection benefits. It also makes law firm employees (and possibly lawyers themselves) potential witnesses.
Many companies have gone to bulk collection by their own IT departments. This can be a more acceptable practice, although it should be a determination based on the specifics of the case and a proportionality and accessibility analysis. For example, bulk collection of all custodians’ e‑mail is a normal best practice in all but the smallest cases. And even if you do use the client’s IT department, you as the attorney must remain involved to ensure the collection is forensically sound and documented. In some cases, the client’s IT department may even be certified to collect data.
Use of third-parties (typically vendors) to collect has become more accepted. Usually, these are going to be specialty vendors providing collection services (either forensic or forensically sound). There are many vendors out there, and coming up with a list of approved vendors and preferred or negotiated pricing is important. In addition, when looking at vendors, it is important to make an apples to apples comparison. Finally, keep in mind that it is important to maintain and document the chain of custody regardless of who is collecting the ESI.
Because collection of ESI is such a significant issue, I will continue to address it in future blogs. Next time, I will discuss the custodial interview as it relates to collection of ESI.
–A. David Fawal