Audience members were presented a scenario. There is on-going business-to-business litigation. An employee has responsive ESI on their private phone: text messages they sent to other employees and marketing videos. But, the employee doesn’t want to give you access to the phone. How would you handle that situation?
The answers spanned the gamut. But, in general, it seems like there are five types of professionals in eDiscovery.
1. The Pragmatic Attorney
“Dealing with this issue seems like an unnecessary and counterproductive distraction. Perhaps I should call up the opposing side and see if we can both agree to keep personal devices out of the scope of Discovery. Sometimes what’s good for the goose is good for the gander.”
2. The Lawful Attorney
“That employee has an obligation to preserve and produce all information that may be relevant to the litigation. I need to inform them of that obligation. And if they won’t produce willingly, I’ll file a third party subpoena and compel them to produce.”
3. The Accommodating Attorney
“We should ask the employee, ‘Why not?’ Then we can come up with creative solutions that get the job done. The employee might not want to share personal information with their employer. If so, they could engage their own counsel to review and produce what’s only relevant to our litigation.”
4. The Pragmatic Technologist
“Let’s scale the problem. How much ESI is uniquely on the phone? Almost all the data can probably be recovered from their iCloud account on their company laptop, from their company email or from the company devices of other employees. Worst case scenario, they email us responsive screenshots and videos.”
5. The Completionist Technologist
“We absolutely must have the device and collect it in a forensically sound manner to 100% avoid any risk of appearing non-responsive to our preservation obligation and to avoid spoliation claims with certainty, regardless of the cost and disruption.”
Not Present: The Blatant Defier
“Run it over with a car. One of the great challenges of eDiscovery is that when one party fails to preserve evidence, it’s on the other party (the moving party) to establish something remiss has happened.”Concluding Thoughts
It’s always fun to get multiple points-of-view in a room to tackle challenges together. I thought that this event underscored some of the key challenges of eDiscovery. Namely, that it’s cross-functional, and not everyone is aware of all the options that are available to them. The technical folks don’t always see the legal options and the legal folks don’t always see the technical options.____________
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