Original doeLEGAL Source - 2020, By Adam Bowers, JD.
Revised April 25, 2023
Pronounced changes to the Federal Rules of Evidence (FRE) have occurred over the past years. Some are broader in scope, while others create more dramatic effects on the eDiscovery process. The amendment to Federal Rule of Evidence 902 has caused many corporate entities to question whether they should continue to allow self-collections of their own litigation data or if they will avoid risks and exposure by hiring a 3rd-party professional service provider to oversee the collection tasks.
The favorable news for US-based corporations is that the amended Federal Rule of Evidence 902 does not require forensic collection experts. Still, there remain some critical reasons to consider seeking the expertise of an outside legal collections expert to ensure proper procedures are in place and followed.
Introduction to the Amended Federal Rule of Evidence 902
Attorneys must understand and optimally participate in identifying, preserving, and collecting their clients' ESI (Electronically Stored Information). Today, courts are more tech-savvy and less forgiving of any ignorance regarding eDiscovery collection practices. This paper provides an overview of self-collection and a cost-benefit analysis of the DIY (do it yourself) model from a lawyer's perspective, not a marketing perspective. An important distinction is drawn here because doeLEGAL and Questel are not forensic collection companies; we offer best-of-breed data collection techniques and practices, using advanced technologies and partners to ensure clients can make effective decisions. The intent is to take an honest look at the issues surrounding how corporate clients gather and identify ESI data to present strong evidence during litigation.
NOTE: This blog is not to be considered legal advice. If you need legal advice, consult with a state-licensed attorney. With that said, let's look at the changes Federal Rule of Evidence 902 brought to life and its impact on eDiscovery collections.
Dangers of allowing employees to conduct legal holds, manage their own data, and administer a self-collection
With eDiscovery technology evolving rapidly, companies often get mired in the weeds, forgetting that humans remain a considerable part of the litigation equation. One past case exemplified the significant expense of allowing employees to preserve their own litigation data: GN Netcom, Inc. v. Plantronics, Inc. The case has become so recognizable in eDiscovery circles, much like Zubulake, that it joins the infamous "single name club" – it's now known as "Plantronics." In this case, a senior member of management instructed his sales team to delete certain emails and other data in direct contradiction to a company-instituted legal hold on those email accounts. The intent of the sales manager was seen as malicious, and the Delaware Federal Judge was not amused. The court sanctioned Plantronics in the amount of three million USD, plus associated fees and costs. While Plantronics proved to be victorious on the merits of the case, it was still liable for the millions in spoliation-associated costs: "They lost the battle but won the war." While the Plantronics case serves as an example of intentional destruction of litigation data, there are also less nefarious reasons that employees should not be left to manage their own data preservations or collections.
Another notable case demonstrated why the process of a client collecting their own documents for litigation, commonly known as "self-collection," is risky and generally frowned upon by courts unless specific circumstances warrant it. Self-collection can potentially jeopardize the client's best interests and the integrity of the case. In fact, one judge expressed deep concerns regarding this practice, as evidenced in EEOC v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc., Civil No. 19-cv-81320 (S.D. Fla. July 2, 2020).
When clients collect their own ESI for litigation, they may not completely understand the legal and ethical responsibilities involved. This can lead to issues such as over-collection or under-collection due to concerns about self-incrimination or conflicts of interest. Attorneys should instruct their clients to avoid self-collection practices since they must certify a client's self-collection and production efforts (as required by FRCP 26(g)). While self-collection is not inherently flawed, self-selection often poses significant risks in the legal process.
What is self-collection?
Before we get too far into the concepts of preservation and collection, let's define "custodian self-collection" using the two methods used most often. One is where the custodians are responsible for preserving, searching, and identifying their data while IT would do the actual collection (gathering of ESI). The second is where the custodians are responsible for preserving, searching, identifying, and collecting their own data. Each method has many of the same challenges and risks, but the first method is more common in business, so we will use that as our reference.
In a past webcast, 62% of the attendees were concerned with spoliation risks associated with custodian self-preservation. However, in a survey of corporate counsel, 47% of organizations relied on custodian self-preservation more than 75% of the time. A clear split exists between what they know is right and doing what's right. Another thing to keep in mind when exploring how not to over-collect comes from employing a "collect everything" approach to preservation, a practice that creates its own apparent issues, such as increased costs, larger volumes of data to review, and potential risk in other legal matters.
An additional example of the dangers of custodian self-collection comes from Nat’l Day Laborer Org. v. US Immigration and Customs Enforcement Agency, government employees from several different agencies attempted to compile data in connection with a FOIA (Federal Rules of Evidence Freedom of Information Act) request. There was a general lack of supervision, and the employees were Federal Rules of Evidence to search their own email accounts. But several ex-employees never had their emails searched at all, which prompted Judge Scheindlin to order the parties to meet again and confer to formulate search criteria and procedures. Scheindlin pointed out that there was no clear identification process in place, and the employees were directed to identify personally created data, which was not a normal work duty. One of the major issues was that those government employees were not even aware of where their custodial data was stored, so when they merely searched their shared drives, many records were entirely overlooked.
Despite spending thousands of hours and hundreds of thousands of dollars on the exercise, the court opined that "Transparency is indeed expensive, but it pales in comparison to the costs to a democracy of operating behind a veil of secrecy". The courts have long disfavored custodian self-collection because it is not systematic, repeatable, and defensible. Judge Scheindlin went so far as to say, "Most custodians cannot be 'trusted' to run effective searches[…]" This may explain why Federal Rule of Evidence 902 was amended to require the certification of a collection by a "qualified person." Attorneys should be involved in all aspects of the preservation and collection of their clients' litigation-data, no matter who performs the physical collection. But the new Federal Rule of Evidence 902 does not directly speak to attorney involvement.
It is notable that the Chancery Court of Delaware had all but placed an outright ban on unsupervised self-collection of employee data. In Roffe v. Eagle Rock Energy GP, LP, et al, CA No. 5258-VCL (Del. Ch. April 8, 2010), the Court of Chancery addressed party self-selection of the documents to be produced in litigation. “This is not satisfactory. Attorneys should not rely on their clients to search their own email systems. There needs to be a lawyer who makes sure the collection is done properly.”
Where, oh where, has my data gone?
The over-collection of litigation data is often the norm, and we explored some of the dangers you face in doing so already. Collecting enough is not the same as over-collecting. Steve Bunting, CEO of Bunting Digital Forensics, said, “You never know when a spoliation claim will come up, and getting everything up front puts you in a far better position down the road.” By creating a forensic image of a device or server, you may just be capturing data that you did not know you would need later. For instance, imaging a laptop will save the entire hard drive, including something called "Federal Rules of Evidence space". Without getting too technical, Federal Rules of Evidence space is the part of a drive that contains deleted items or file fragments. When someone deletes a file, devices will break it into several pieces and send it to the hard drive's Federal Rules of Evidence space. A skilled forensic expert may be able to retrieve and reconstruct ESI from this Federal Rules of Evidence space, which could be important if opposing counsel is accusing your client of intentional or negligent spoliation.
So what's the bottom line here when it comes to self-collection problems? It's really quite simple: most employees don't understand what to collect or from where to collect it. This is where a forensic collections expert can help unravel this problem by creating a "data map" that shows all custodial devices (office, mobile, and personal), any instance of third-party data hosting (emails, social media, sales platforms, etc.), and internal and external storage locations. This visual depiction can be beneficial during a self-collection because it provides a "treasure map" to the data that can be easily understood and actioned.
Any reasonable attorney must take into account the human factor and safeguard against risks, including the intentional deletion of data and the sluggishness of their client's employees.
Federal Rule of Evidence 902: What's the attorney's role in the process?
While we won't cover the legal hold process in this whitepaper, it involves many of the same issues as a collection, including the identification and supervision that the collection process presents. In short, it is impossible to collect what has not been preserved, and it is equally impossible to preserve what has not been identified. With so much at stake, responsibility for preservation and adequate collection practices falls on the attorney. Because of this added responsibility, involvement in the process throughout the life cycle of litigation is crucial to protecting the client's best interests.
Early in the identification process, a litigation attorney must be vigilant about what custodial data is involved and where that data is stored. First, the scope of the litigation determines the breadth and depth of the attorney's responsibility to safeguard any data that may fall within that scope. This practice is not limited to data they know to be part of a current litigation, but extends to data that may be part of future litigations. In effect, the FRCP and the Federal Rules of Evidence make an attorney the fiduciary of litigation data for current or potential future litigations.
How does this relate to self-collections? Even attorneys involved in the litigation do not always know what data or evidence may be relevant, so it is reckless to believe that employees possessing ESI will be able to make this judgment. The best course of action is to meet with opposing counsel and design a legal hold that will reasonably capture as much relevant ESI as possible. This may include scheduled meetings with identified or potential custodians to ensure compliance with legal holds.
It is important to point out that the ABA has expressly recommended that attorneys understand their client's use of technology (Rule 1.1 comment 8). Additionally, most US states have made technology competency a part of their Model Rules of Professional Conduct. However, some of the language used by the states is quite vague and speaks to a standard of care akin to avoiding negligence.
One final area that should be addressed is the "chain of custody." An attorney should maintain a proper, well-documented ESI chain of custody, which starts with the identification and collection of the litigation data and continues throughout the litigation's life. Any alteration to collected data is traced back to the party in control of it at the time of the alteration. Comparing the hash values is a quick and easy way to identify if a document was altered, but this also presumes that metadata has been preserved and collected. Treat ESI like you would any other piece of trial evidence. It is essential to know and understand the life cycle of the trial evidence to maintain accurate records of your efforts.
Conclusion to the Attorney's Guide to Federal Rule of Evidence 902 – Avoiding Self-Collection Minefields
Investing money upfront to hire a professional or train internal employees to perform forensically sound collections can stave off future pitfalls associated with using and reviewing litigation data. Keeping in mind that the most expensive aspect of an eDiscovery project is the time that attorneys or paralegals spend reviewing the ESI that was collected, it becomes even more apparent that investing in proper collection practices is cost-justified. Familiarize your team with Federal Rule of Evidence 902 to ensure you follow the amended rule and provide the best advice to your client to protect everyone's best interests! In the digital data era, the Federal Rules of Evidence Rules will continue to evolve to match the current needs.
There are many moving parts to eDiscovery: Human, technical, legal, and ethical. By ensuring that companies follow the proper legal holds and collection practices, an attorney may perfectly position themselves to safeguard their client from possible sanctions for spoliation and reduce the resources spent by litigation support and review professionals. Whatever the amount of money that might be saved by following a DIY model of self-collection, this will certainly be outweighed by extra resources spent by litigation support professionals, reviewing attorneys, and the need to hire trial experts to authenticate the data collected.
The best defense is staying up-to-date on trends and requirements for ESI in litigation. This whitepaper covering Federal Rule of Evidence 902 is one part of that information-sharing initiative Questel is driving for the Legal market. When exploring if you should engage in ESI self-collection, consider the old English sailing proverb, "A stitch in time saves nine," which loosely means that a timely effort today can prevent more work later, is still applicable to modern-day litigation practices.
For specific advice or more insight on the information shared in this blog, get in touch with our experts.
Adam Bowers is a former employee of doeLEGAL, A Questel Company. Adam is an eDiscovery expert, LLM candidate, a former business owner, and legal technology practitioner who helps law firms and attorneys navigate the complex world of eDiscovery.