In today’s sophisticated digital environment, people can feel so confident in their IT skills that they think can do anything an e-discovery professional or IT professional can do. This case is a prime example that this isn’t true, and for an e-discovery process to be truly defensible, legal teams must play an important role in ensuring the proper and comprehensive collection/processing of data in e-discovery.
In this age discrimination case, the plaintiff sought more specific responses to two discovery requests and an opportunity to “inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of its counsel.”
Within discovery, two employees of the defendant “searched for documents and information responsive to Plaintiff’s discovery requests on Defendant’s behalf.” The defendant’s counsel was not aware of the process the defendant used to collect data and did not supervise the defendant’s collection efforts. Even with no knowledge of how the defendant collected data, defendant’s counsel signed the responses.
As a result of only receiving 22 pages of documents, the plaintiff moved to compel data and an opportunity to inspect the defendant’s computer system.
• Motion Denied. While the court took issue with how data was collected by the defendant, since there was five months left in discovery, the court gave the defendant one last chance to comply with the plaintiff’s discovery requests.
• No Inspection of Defendant’s Computer System. The court would not grant access to the defendant’s computer system because, under FRCP 34, granting access was only the exception not the rule for discovery of ESI.
• Prescriptive Next Steps. The court ordered the two parties to meet and confer and create an ESI protocol that included agreeing on relevant data sources, custodians and search criteria. The court required these negotiations be done in good faith, and if there was a failure to comply, sanctions would be issued.
Download the PDF version of E.E.O.C. v. M1 5100 Corp. case law alert here.
This is another of several recent cases reminding that, under FRCP 26(g)(1), counsel should not be signing discovery responses without first taking reasonable steps to ensure that the response is “complete and correct.” “Self-collection” can be problematic, and even sanctionable, especially where it has not been closely supervised by counsel.