An interesting article came through the eDiscoveryJournal newsfeed about self-collection being prohibited in Delaware.  I read the article with zeal as I’ve been thinking a lot about how asking custodians to collect their own data is borderline ridiculous.  Well, that’s not exactly what the article was saying, but there’s room for discussion of both my original interpretation and what the article says because both perspectives are topical and move toward the same conclusion.

The Delaware article refers to a discovery ruling in the case Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010).  The ruling was that “that confirmatory discovery—like formal discovery—requires the defendant’s attorney to be physically present during the collection of electronically stored information from his/her client; self collection by the client is not permitted.”  As an industry observer – not a lawyer, mind you – this seems to me to be overly burdensome.  Organizations cannot have lawyers come onsite to oversee all collection activities.  In my opinion, organizations should rather create workflows and standard operating procedures in conjunction with counsel and then be able to report on all collection activities to show that they are defensible.  We wrote about defensible collection here.

The analysis in the article goes on to state that it’s likely the courts would only require lawyers to be present in certain situations.  I suppose that can be understandable – but it does introduce even more uncertainty into the collection process.  These rulings tend to be non-prescriptive, leaving organizations not sure of when lawyers need to be present versus not.  It’s that kind of confusion that leads to organizations simply doing nothing.  Why spend money on an initiative only to find out that lawyers need to come in and change everything?

Now, I agree with the author’s analysis that courts aren’t damning all aspects of organizations self-collection efforts.  When I think of self-collection, though, I think of custodians actually uploading their data into a preservation system (which is not uncommon).  It would be nice to see courts actually strike that practice down.  Even if 99% of custodians are cooperative, that 1% are always going to try to hide or delete some data – and we all know that it only takes one bad apple to spoil everything.  Collection tools are sophisticated enough now that organizations should be able to centrally manage collection efforts for 90% of what needs to be preserved.  There will be the need to take forensic images of certain local machines, but a good information management or information governance program should cover most organizations and make the collection process smoother, more efficient, and defensible.