As legal professionals continue to navigate the fallout of the COVID-19 pandemic, ediscovery software continues to play an increasingly pivotal role as many are working remotely. However, as more and more law firms and solo practitioners utilize ediscovery technology, the importance of properly collecting electronically stored information (ESI) is as critical as ever. In fact, if ESI collection is being done by untrained professionals or without supervision or guidance, there is no possible way to ensure that the data collected is adequately secure.
The need for oversight regarding ESI collection has recently been on full display with July’s E.E.O.C. v. M1 5100 Corp. case in the United States District Court for the Southern District of Florida. This case provides a clear example of the significance of the ESI collection process, while also illuminating how it may need to change in the future.
E.E.O.C. v. M1 5100 Corp. — A Lack of Oversight
In the age discrimination case, E.E.O.C. v. M1 5100 Corp., the defendant, M1 5000 Corp. (which does business as Jumbo Supermarket, Inc.), allowed two of their employees to self-collect ESI. According to the court, they only collected 22 pages of documents in total. The defendant’s attorney signed the discovery responses, therefore implying that they properly conducted the collection. In fact, by signing the documents without having provided proper guidance or supervision, the court noted that the attorney acted in conflict with the Federal Rules of Civil Procedure.
Due to the improper practice of the defendant’s attorney, the plaintiff requested to inspect the items. The court noted that this could only happen “when all other reasonable solutions have been exhausted or when the court suspects bad faith or other discovery conduct.” It is clear that the COVID-19 pandemic has caused additional layers of difficulty to the collection process. However, despite this challenge, the attorney is still responsible for providing aid in gathering the necessary ESI.
In this case, the defendant was then ultimately given a final opportunity to collect the ESI. The court also made it known that it would be closely monitoring the discovery process, declaring that “the court will give the defendant one last chance to comply with its discovery search, collection, and production obligations” before the discovery cutoff date roughly five months out.
The Importance of Proper Collection
The E.E.O.C. v. M1 5100 Corp. case highlights how attorneys are obligated to have active participation roles in ESI collection while showcasing the repercussions should there be an absence of guidance and supervision. The court explained that there is a need for lawyers to exercise a level of care, noting that they “have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process.”
In this case, the court solidified the importance of the attorney’s obligation to provide sufficient oversight during the collection of ESI. All attorneys need to be active participants in the collection process from start to finish. No client should ever be on their own to collect ESI.
The quality of the supervision in the collection process does not change depending on the case. Each case requires the same level of care and guidance. Without any direction provided by the attorney, the quality and breadth of items collected undoubtedly diminishes or could be compromised entirely. Further, beyond the quality problems that inadequate ESI collection can cause, attorneys are also morally obligated to help their clients.
Final Thoughts on ESI Collection
Many attorneys have the knowledge and expertise on how to accomplish the task of ESI collection correctly. Moreover, even in times as complicated as a global pandemic where distancing is a must, there is still a responsibility to provide sufficient oversight to clients on how to gather ESI. Attorneys will have to adapt and find ways to ensure that they conduct each collection in the correct manner. And as this case shows, there is ultimately no excuse for lackluster ESI collection — each and every case deserves the same high-quality care.
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