My very first Journal entry, The Myth of Custodial Selection, explored the very real discrepancy between what your designated custodians think might be relevant and reality. Now the Delaware ruling of Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010) seems to assert that custodian self-collection is inadequate and all collection must be done under the direct supervision of counsel. Barry Murphy tackled some of the potential implications and solutions in his article on Standardized Collection Workflows. I would like to assert the need for technology to enable custodial self collection or ‘custodial designation’ as an integral part of any preservation and collection effort. In my recent examinations of Enterprise Desktop Collection, Self Collection is the first and dominant methodology outlined. That is because even if you do a full forensic image of every desktop, I believe that you are still obligated to interview key custodians and ask them for relevant ESI. No one wants to try and explain why a reviewer missed a key document that your star witness knew was the smoking gun.

Enterprise desktop search does not eliminate custodial interviews and collections. Instead it enables reasonable, scalable workflow to preserve or collect in addition to the custodial designated collection. In my recent briefing on Autonomy’s ever growing product suite, I was pleasantly surprised to discover that Autonomy Legal Hold (ALH formerly Real Time Policy) has expanded their legal hold notification to support custodian self preservation/collection functionality. In plain words, their notice workflow can include the ability for the custodians to immediately designate desktop folder and files for immediate collection.  This is an example of technology supporting an existing process and easing the burden on the custodian as well as counsel. There is no substitute for talking to your key players, but they will not know where everything is located nor should they be responsible for a proper, complete collection of context and content.

The Autonomy notification workflow competes with the Atlas, Exterro and other legal hold products, although I would want to verify their custodial collection methods in an enterprise setting. Quite a few products claim self collection support in the eDiscovery Application Matrix, but some seem to be stretching the definition of the feature. I can see how Vice Chancellor Laster might view self collection without a supplemental desktop search as requiring the direct oversight of counsel. Cases like the spoliation sanctions in In re Hawaiian Airlines, Inc., Debtor; Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2007 WL 3172642 (Bkrtcy. D. Hawaii, Oct. 30, 2007) serve as a clear example of how a corporation could be held accountable for a single bad actor.

So self collection should be part of your discovery plan, but you cannot rely on it alone in many matters. All of this will come down to a risk vs. cost reasonableness decision made by counsel on the merits of every case. State and District courts are slowly weighing in with examples of what not to do. What we do not get to see are all the discovery plans where both sides have managed to forge an agreement during the Meet-and-Confer process. That leaves most counsel hungry for solid published opinions and vendors cheerfully playing the risk card to angle for work. We should not throw out the baby with the bathwater, just because Delaware has come forth with an example of poorly executed discovery.