Manual Collections of ESI in Electronic Discovery Come under Fire

Electronically stored information (ESI) in involved in almost all litigation these days. Currently, there are few rules governing the collection of ESI. However, there is growing debate over the practice of manual collection methods as opposed to using automated methods:

While it is common for companies to use automated data-collection software and hardware, some corporate litigants opt for more informal, “manual” collection methods (i.e., searches performed by individual records custodians) when responding to ESI requests. Companies may choose the manual collection of ESI to reduce costs, particularly if they have limited levels of litigation or lower risk levels posed by the litigation itself.

But, is this a defensible practice? What happens when the requesting party challenges the results of a production based on manual collection methods? An analysis of Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), litigated in the District of New Jersey and guidance from The Sedona Conference® provide some guidance and insight. However, this is an evolving issue, and other courts may have varying views.

via ARMA International: The Association for Information Management Professionals – News: ARMA International Information Updates: IMN.

In a recent blog on e-discovery 2.0, Dean Gonsowski discusses this issue. He argues that it’s not very likely for manual collections to be deemed “less defensible” in the long run — as long as they are carried out properly:

From the foregoing, it’s probably too early to call the skepticism over manual collection a trend per se.  Certainly, lobbing a preservation notice over the proverbial wall to custodians without the requisite level of supervision is a recipe for disaster.  Education (about the matter and the required tasks), compliance (with the preservation instructions) and ongoing monitoring (to ensure that compliance continues over time) are all critical responsibilities that must be thoughtfully undertaken by counsel for a defensible ediscovery process.

The question then becomes, is the problem here really about the “manual” collection efforts by the custodians or more simply the fact that they aren’t supervised with the requisite degree of care?  If this is the case, which I’d opine that it is, then “properly executed” manual collections should be fine (i.e., defensible).

But, as Ford indicates, if your company is going to rely upon a manual collection modus operandi, then it may be advisable to let the opposition in on the use of this tactic.  This approach may be mandated by local rule or it may just be the type of transparent cooperation that’s all the rage these days.

via Manual Collections of ESI in Electronic Discovery Come under Fire.