Document Collection

“We are family.” If you are like many people, you can’t read those words without singing them. Unlike the joyous refrains of Sister Sledge, however, the idea of family may take on a more ominous tone when viewed in the context of familial corporate relationships and the obligation to preserve and/or produce electronically-stored documents or information in litigation. In today’s digital world, related corporate entities may share email servers or electronic databases or jointly engage agents to process or store their electronic data. The use of shared administrative or other departments may further cause the commingling of access to various corporate electronic data repositories. As technical advancements increase and further ease the flow of data between related companies, the question arises what discovery obligations a company may have to preserve or produce its affiliate’s electronic data in litigation to which the related entity is not a party.

Document management systems allow users to send a link to a document directly from the system, ensuring that all recipients receive the same, most up to date version, and, often most importantly when it comes to efficiency, ensuring that only one person is working in a draft document at a time. When we email links to these documents, the document itself is not attached to the email; rather, a hyperlink to the document where it is housed on the document management system is attached. As an e-discovery professional, my next thought is….how do we handle these links in discovery? At least one court has grappled with this question and its decision sheds new light on how we can handle hyperlinked attachments in our own cases.

In DR Distributors LLC v. 21 Century Smoking, Inc, v. CB Distributors, Inc. and Carlos Bengos, 2021 WL 185082, No. 12 CV 50324 (1/19/2021), Judge Johnston of the Northern District of Illinois, granted Plaintiff’s motion for sanctions against Defendants and their former counsel, requiring them to, among other things, pay what was expected to exceed a million dollars of attorneys’ fees and costs to Plaintiff. The Court imposed the sanctions based on its conclusion that Defendants and their former counsel: did not take reasonable steps to preserve ESI (electronically stored information); did not conduct a reasonable investigation of their ESI; did not timely disclose ESI under 26(g); and spoliated thousands of emails and chat messages. This ruling shows that we, as legal practitioners, need to be extremely congizant of our discovery obligations.

COVID-19 has changed the world we live in. People are working from home, students are attending classes online, and all group events are handled remotely. For those of us who work in the E-Discovery field things have changed also. While we are facing new challenges, we are also finding interesting new opportunities to conduct our work more efficiently, and everything we are learning will inform our work even after the pandemic is over. 

Companies and organizations use social media ("SoMe") to gain market advantage, shape and model their own image, market and advertise to customers, track how effective their marketing campaigns might be, understand who their customers are, test new products or services and provide a platform through which customers can provide feedback. Every post or piece of analytics could be considered a “business record,” subjecting it to discovery in both civil and criminal litigation, internal and government investigations or audits. As a result, attorneys and their IT teams should understand the best practices for preserving, processing, reviewing, and producing data from SoMe sites to acquire valuable – and usable – evidence.

There is often a lot of discussion around the processing and review of documents in a litigation, most likely because these phases end up costing the most money and taking the most time. What is often overlooked, however, is the collection process and how that phase sets the tone for the rest of discovery, including overall case strategy, knowledge gathering and cost thresholds for the case. In this blog, I lay out some best practices that can be followed to collect data in a sound manner while keeping costs reasonable and gathering all relevant information.