Surely, you’re not still considering allowing custodians to perform self-collection of email unsupervised, are you? As a recent article from Forensic Discovery illustrates, a lot can go wrong when you do that. It can even lead to sanctions.
In the article You Want to Have Custodians Collect Their Own Email for Discovery Purposes? Here’s Why You Shouldn’t, the author discusses how Rule 26(g) of the Federal Rules of Civil Procedure require the attorney to certify the results of the discovery response and clause 26(g)(3) calls for sanctions for improper certification of the discovery response. If you’ve been reading this blog, you already know this as I covered two recent cases (here and here) where Rule 26(g) violations occurred because counsel didn’t properly certify the production. Similar rules exist for various state and local jurisdictions as well.
Of course, this means that the attorney needs to be involved in collection instead of custodians performing self-collection of email. Unless that attorney knows how to collect ESI in a sound forensic manner (sorry, attorneys, but very few of you do), he or she needs the help of an expert to ensure proper forensic collection of the email. The importance for a forensically sound email collection is that the electronic evidence is collected in a way that allows it to be self-authenticated.
So, what can be proven by self-authentication of the collection? And what can go wrong during self-collection of email (even if the IT department does it)? I won’t steal their thunder, you can check out their article here on the specifics.
So, what do you think? Have you ever been involved in a case where self-collection of email was turned over to custodians? Please share any comments you might have or if you’d like to know more about a particular topic.
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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.