Thanks to forensics expert Lance Sloves for highlighting Consilio’s recent misdemeanor conviction and fine for exceeding the agreed upon email collection scope in Angelyn A. Olson et al. v. Consilio, LLC and Willie Lathan, Cause No. 017-331812-22 in the 17th Judicial District Court in Tarrant County. So, what happened and how do you avoid overstepping scope in 3rd party collections?
The full verdict and filings are not publicly available (that I could find without pointing you at a paywall), but the 2022 Law.com writeup gives you the scenario. The previewed motions and exhibits on Trellis provide more details. What started as a simple request for a targeted set of Angelyn Olson’s emails became complicated when a Consilio analyst encountered problems retrieving all emails from 12 named email addresses since 2012. The email host has been redacted, but far too many forensics practitioners default to ‘grab everything the first time’ rather than make iterative selective collections using the native platforms. They only trust search results that have been processed in built-for-purpose eDiscovery platforms. Apparently another provider was able to accomplish the original collection using the email addresses. It is important to note that Consilio’s counsel seems to have done everything correctly in negotiating the collection protocol that was violated.
In this case, violating the agreed upon collection scope without approval came with consequences. Ms. Olson’s counsel responded immediately and aggressively when informed that Consilio had collected 134,000+ files instead of the designated conversations with specific parties. eDiscovery acts of ignorance, malfeasance or negligence have traditionally gone unpunished. My saved searches in eDiscovery Assistant and Doug Austin’s eDiscovery Today show a slow trend of sanctions and published rulings. Maybe judicial education has raised awareness of technical capabilities and privacy concerns to start impacting behavior. If you do not trust the source system capabilities, then bring that concern up early and find a solution that addresses privacy, privilege and other concerns. The source systems have gotten much better on indexing and retrieval. They all have limitations and may require some research or testing before you can, ‘trust but verify’.
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Book a free 15 minute ‘Good Karma’ call if he has availability. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
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