Maker’s Mark: A Different View of Self Collection

In Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), the court addressed self-collection.

I have previously written on self-collection in “Unsupervised Self-Collection Predictably Led to Problems,” and in “Self-Identification and Self-Preservation: A Fool for a Client?,” I cited to R. Losey, “Another “Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

I have advocated for safeguards such as consideration of proportionality factors, appropriate and reasonable attorney supervision of the self-collection, careful selection of disinterested client employees for self-collection, adequate training of the collectors, and Ralph Losey’s suggestion of a “dual protection system.”

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.”  In M1 5100, the court wrote that attorneys have a duty to supervise their client’s collection of information.

There is ample support for that approach:

[S]elf-administered e-discovery happens not only at the enterprise level but at the individual level as well, where preservation and collection consists of a request to custodians that they use their best judgment to identify and secure or transmit relevant information. Counsel responsible for defending such a process or even authenticating the evidentiary integrity of data subjected to such self-collection may face challenges.

Several cases have criticized “self-collection” practices in various circumstances, including Judge Scheindlin’s decision in National Day Laborer Organizing Network v. United States Immigration & Customs Enforcement Agency.  Judge Scheindlin focused on the adequacy of search methodologies utilized and whether certain employees could be trusted to run their own searches. It is essential that counsel understand the technology and methodology deployed during any self-collected data so that they can be prepared to defend those processes if necessary.

In EEOC v. M1 5100 Corp., the court’s opinion includes a section entitled “The Perils of Self-Collection of ESI By a Party or Interested Person Without Proper Supervision, Knowledge or Assistance of Its Counsel.”

Preservation and Collection of Electronically Stored Information (“ESI”), Elect. Disc. L. & Pract. §9.02, 5622248 (West).  Thus, “[m]any … cases may also warrant independent forensics assistance; what seems like a penny-wise move at the preservation stage often becomes a pound-foolish blunder under the scrutiny of motions or trial. Note that using internal corporate IT, even where the individuals are qualified from a forensics standpoint, does not alleviate potential bias accusations when something goes awry.”  Id.  “

However, the Maker’s Mark court suggested that a different approach may be defensible. Maker’s Mark asserted that “careful planning, oversight, and monitoring by the [opposing] party’s counsel” was required.  Id. at *6.  The court did not agree:

It seems obvious that in litigation, those most likely to conduct an effective search for their company’s documents and data are employees of the company. Not only will a party’s lawyer lack the experience and the competency to conduct a meaningful search under the Federal Rules of Civil Procedure for documents, but a lawyer’s role in any bout of litigation will be inconsistent with that of a gatherer of company documents to be turned over to the opponent in discovery…

It is a party’s non-lawyer employees who generally know where things are, how they are stored, what files exist, and what search is required and would be productive. Attorneys are there to advise their client on legal issues, and to make judgments about relevancy and other legal issues.

That does not mean that one side must accord the weight of an encyclical to the other side’s representations regarding the completeness and thoroughness of document discovery. No rule requires the kind of involvement in and oversight of discovery that seems to be contended for by the plaintiff’s Motion.

Id. at *6-7 (citation omitted) (Emphasis added).

This would appear to suggest that counsel’s role may be much more truncated than it is under the M1 5100 approach.

That said, on its facts, the Maker’s Mark court wrote that here, there was no indication of a shortfall in the collection effort, and the collecting party had discussions with counsel who “instructed the employee’s as to relevance.”  Id. at *7.  Thus, there was both instruction and supervision by counsel.

For prior blogs related to other issues in Markers Mark, please see Blog, “Maker’s Mark: What Happens When Neither Party Cooperates?” and “Requests for ‘Any and All’ Documents Are Obsolete.”

Craig Ball suggests – correctly – that a lawyer can collect ESI (Craig refers to social media) “without greater risk of becoming a witness than if they’d photocopied paper records.”  C. Ball, “Preserving Social Media Content: DIY” (Dec. 24, 2019).