eDiscovery in SA – The dilemma that is self-collection, and what is happening in the world of eDiscovery in Covid-19 times

Those who know me are aware that I always say there are three ways of collecting data:-

1.    Forensic collection (which I always recommend)

2.    Self-collection (which I never recommend)

3.    Hybrid collection whereby a competent IT person or department at the client company works with a forensic company (which I sometimes recommend)

I was interested to read of a case in Florida, USA,  EEOC v. M1 5100 Corp., Case No.9:19-cv-81320 whereby a prominent federal magistrate judge, Judge William Matthewman, not only criticised the act of self collection but made it an ethical issue. “This issue of ‘self-collection’ of discovery documents, and especially of ESI [electronically stored information], by Defendant [Jumbo] in this case, without adequate knowledge, supervision, or participation by counsel, greatly troubles and concerns the Court,” Judge Matthewman wrote.

Citing the requirement of Fed. R. Civ. P. 26(g), which requires an attorney to sign and certify that her client’s disclosure is “complete and correct as of the time it is made,” the court said there was no way a lawyer could certify under Rule 26(g) if the lawyer allowed self-collection.

“There is simply no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1) and yet have no involvement in, or close knowledge of, the party’s search, collection, and production of discovery,” the judge wrote.

 “It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized,” he added.

Ok, Ok, I hear you say, but this is America and here in SA the client swears an affidavit with regard to discovery rather than the attorney (N.B. the same as in the UK except it is not an Affidavit anymore –it is a Statement of Truth which is no less pejorative). Irrespective of that any attorney has a duty with regard to the obligations of discovery which cannot be abrogated simply by hiding behind the fact that the party swore the affidavit and not the attorney.

Some would also say that in these days of MS Office 365, the system removes the need for forensic collection. I take a different view and say that even in an Office 365 matter, my option 3 above of a hybrid collection would be best practice. Use the power of 365 along with a competent IT person or team BUT have the collection verified and authenticated by a qualified independent forensic company. If not, I contend it is difficult to argue defensibility and, personally, I agree with the US Judge, it is unethical.

Some time ago I referred to the State Bar of California’s Formal Opinion which included giving lawyers three choices if they are stumped by e-discovery: (1) learn it, (2) associate with technical consultants or counsel who do know it, or (3) decline the representation of the client. There was no option to take a case and then allow your client to self collect ESI and to quote David Horrigan (Relativity’s discovery counsel and lead educational director) “...Frankly, in 2020, lawyers should know better...”

To all SA attorneys, Advocates and the judiciary I respectfully say, please, please take note.

Elsewhere in the eDiscovery space some people that I know have been commenting upon the industry as a whole. The President of the Association of (ACEDS), Michael Quartararo has been talking about how Covid -19 has, like many industries, affected the eDiscovery world with many lay offs. He hopes it will “flatten out” but suspects movement within the industry will mean more people working in-house or with service providers where there will be more opportunities than in law firms. He continues to say that he feels increased skills in areas such as TAR will become more valuable as people aim for more efficiencies and cost reduction in document review.

Then, Cat Casey (Chief Information Officer with Disco) wrote a great piece.

The post questions whether “the document is dead” given so many more methods of business communication in these times including Zoom, MS Teams etc. A great post, which I highly recommend. The message is an extension of one that I preach regularly “Think ESI” 

Next, Patrick Looney (Senior Sales Director EMEA for Brainspace) pointed us to an article showing five ways that Covid-19 has affected eDiscovery.

1.    Finding data can be more challenging with many people working from home and not being as disciplined about IT security.

2.    Fewer fights about discovery between attorneys – now is not the time for squabbles and a good time for attorneys to try to come to agreements. For sure it is unlikely the Courts would have much patience about squabbles in this time.

3.    Re-evaluate resources – definitely a good time to strike deals with your eDiscovery service provider.

4.    Service provider’s price advantage – it is felt that client legal teams will be looking for deals as mentioned above as price becomes a bigger issue. Service providers are likely to be more flexible than law firms. 

5.    Jobs – as mentioned by Michael Quartararo after redundancies there are likely to be more jobs with providers than law firms in eDiscovery.

I really hope that SA attorneys and service providers expand their knowledge and information of eDiscovery by reading at least some of the wealth of information that is out there from the great and the good in the global industry of eDiscovery. Meanwhile I will always do what I can to keep you abreast of what is happening.

Terry Harrison

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+27 (0)748347818