Protecting Privilege: Let’s (not) Be Reasonable
March 5, 2014
Who picks up the tab for e-Discovery? A roadmap for cost shifting under Rule 26(c)
March 17, 2014

Five Questions to Ask Before…Self-Collecting Evidence

Not every matter has the budget of the bet the company kind of litigation.  However, simply going with self-collection protocols can be more costly in the long run if counsel doesn’t understand the potential pitfalls.  Here are five critical questions to ask yourself (or the custodian that would be self-collecting) before you go down that road.  Collection is a pivotal point in any matter because if you don’t collect it, you haven’t preserved it, can’t process and review it, and certainly can’t produce it!
  • 1.       What are you collecting?
Running an export of a custodian’s mailbox from Microsoft Exchange or an established mail journaling system differs greatly from collecting loose documents from a custodian’s laptop, especially if you are poising for an internal investigation into misconduct.   This will help dictate the type of collection that is needed (targeted versus full forensic image) and have subsequent impact on the below questions.
  • 2.       Is this really “self-identifying” AND “self-collection”?
Acquiring an data source in its entirety (i.e., mailbox, user profile, server share) carry’s a much lower risk than a targeted collection (i.e., folder within Outlook, folder on desktop or server share, etc.).  When it is left to the custodian to “put a copy of the documents onto a flash drive and send to the attorneys” it exponentially increases the risk of missing something because there is not only the chance of inadvertently altering metadata but also missing something that could be responsive but the custodian “doesn’t think it would be.”  This is very common with small matters and custodians that export the folder in their Outlook that they created and put all “those emails” into for the attorney’s review.  Yet, drag and drop mistakes are made all of the time, the sent box is rarely organized and the custodian typically doesn’t understand the true breadth of discovery.
  • 3.       Do you have the technology?
DO NOT COPY AND PASTE!  While tools such as EnCase and FTK are industry standards, there are other tools that can allow for the easy replication of data from one point to another and still properly preserve the necessary metadata.  If you don’t have the proper technology and understand how it works, then I’d advise against self-collection.
  • 4.       Are you ready to testify?
Not all collections are questions and require expert testimony (in fact, I’d argue that most are not); however if you count on that Murphy’s Law dictates that this will be the matter that it is required.  Always take into consideration the fact that whomever collects, processes, etc. may be called to testify if something goes wrong.  In the event that something does go wrong, who is to blame?  An unqualified office clerk that exported a folder within their Outlook and a folder from their desktop?
  • 5.       Is this a penny wise pound foolish decision? 
Run a quick cost-benefit analysis and ask yourself if this is truly worth the minimal savings long term.  Some matters can be handled successfully with self-collection; however, others it is a short term savings with long term consequences. When in doubt, consult an expert and ask for help!