Recently, Judge Shira Scheindlin of the Southern District of New York found custodial self-collection inadequate in certain circumstances (National Day Laborer Organizing Network, et al. v. United States Immigration and Customs Enforcement Agency, et al.). As she stated in her opinion: “Most custodians cannot be ‘trusted' to run effective searches because designing legally sufficient electronic searches in the discovery or Freedom of Information Act (FOIA) contexts is not part of their daily responsibilities.”
While the facts of the National Day Laborers case related to government collections in support of FOIA requests, the opinion may have a wide-ranging impact on corporate collection practices. This is because Scheindlin took the opportunity to extend the decision to the discovery context. In response, companies involved in legal proceedings or investigations should check their discovery policies and procedures to ensure that important information is found and preserved.
While a company may want its employees to “self-collect,” employees are not well-versed in the intricacies of conducting a legally sufficient search. As Scheindlin noted, “Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.” Similarly, employees lack the training to collect and preserve email and electronic evidence. A common mistake of untrained personnel collecting evidence is the failure to preserve key metadata, such as file date(s), and to properly document a chain of custody.
The search, collection and preservation of email and electronic evidence should be executed by well-trained professionals in a way that assures defensibility and evidence integrity. The expertise, independence and credibility of the people involved in discovery, the process used to gather data and the forensic technologies supporting the effort are all critical factors in ensuring a company's discovery can stand up in court and is proportionate to the requirements of the matter.
Veeral Gosalia's areas of expertise include data preservation and analysis, computer forensics and e-discovery. He has assisted attorneys and corporations to understand electronic evidence – including the analysis and production of data.