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In Equal Employment Opportunity Comm’n. v M1 5100 Corp, 2020 WL 3581372 (S.D. Fl. July 2, 2020), unsupervised self-collection by a client created a situation that “greatly troubles and concerns the Court.”  There, an attorney permitted the client to determine what ESI it would search for and produce.  This process ran afoul of Fed.R.Civ.P. 26(g).

In the court’s words: “Defendant’s counsel… represented at the June 29, 2020 hearing that he did not supervise his client’s ESI collection efforts.”  The two people who searched for responsive information “are self-interested parties and are employees of the Defendant.”

The shortcomings in M1 5100 were self-inflicted wounds.  ESI is a discipline that needs to be studied.  There is an old joke that law is the only learned profession without a Nobel Prize because in law, you win by proving that someone else thought of your idea first.

I blogged about the dangers of self-preservation almost a decade ago.  While self-preservation and self-collection are not identical, they present many similar risks.  The blog cited articles and case law on that issue and provided practice tips, relying in substantial part on R. Losey, “Another “Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

The M1 5100 court wrote that an attorney is entitled to rely on the assertion of the client, provided that “the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.”

It is clear to the Court that an attorney cannot abandon his [or her] 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….  Defendant’s counsel left it to the client and the client’s employees to determine the appropriate custodians, the necessary search terms, the relevant ESI sources, and what documents should be collected and produced. [internal quotes omitted]

That inaction, combined with a production of only twenty-two documents, led to a Rule 26 violation: “The Court will not permit an inadequate discovery search, collection, and production of discovery, especially ESI, by any party in the case.”

In short, M1 5100 holds that counsel cannot hand the ball off to the client.  Rule 26 demands much more.

The M1 5100 court wrote: “Applicable case law informs that ‘self collection by a layperson of information on an electronic device is highly problematic and raises a real risk that data could be destroyed or corrupted.”  It concluded:

Attorneys have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand. [emphasis added]

The decision was issued on July 2, 2020.  On October 15, 2020, a consent decree was entered.  2020 WL 6889225 (S.D. Fl. Oct. 15, 2020); EEOC News Release, “Jumbo Supermarket Will Pay $20,000 to Settle EEOC Age Discrimination Suit,” 2020 WL 6145390 (Oct. 20, 2020).  Among other things, the decree resolved all claims.

M1 5100 is not an outlier.  “It is not enough for counsel to provide advice and guidance to a client about how to search for responsive documents, and then not inquire further about whether that advice and guidance were followed.”  Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., 2020 WL 2838806, at *5 (N.D. Cal. June 1, 2020).  The Optronic Techs court cited Fed. R. Civ. P. 26(g)(1)(B)(i)-(iii), and wrote:

The Advisory Committee Notes accompanying Rule 26(g) reflect that the “reasonable inquiry” standard is satisfied “if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.” Fed. R. Civ. P. 26 advisory committee’s note, 1983 amdt., subdivision (g).

Optronic Techs., 2020 WL 2838806, at *3; accord Dalia Hoover, “Spoliation Sanctions and How to Avoid Them” (ABA Section of Litigation, Pretrial Practice & Discovery June 18, 2020).

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