In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands.
In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.”
Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise, or counsel the client’s discovery search, collection and production” pursuant to Rule 26(g)(1). The District Court referenced The Sedona Conference Working Group on Electronic Document Production, emphasizing the importance of a lawyer’s reasonable efforts to ensure that there is a proper factual basis for discovery responses. The District Court stressed that there is “no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1) and yet have no involvement in, or close knowledge of, the party’s search, collection and production of discovery.”
Utilizing the theoretical and practical underpinnings of the Federal Rules of Civil Procedure as its framework, the District Court admonished defense counsel for allowing the client and its employees to “determine the appropriate custodians, the necessary search terms, the relevant ESI sources, and what documents should be collected and produced[,]” all while turning a blind eye to the accuracy and responsiveness of the ESI. The District Court also noted that the hands-off oversight by counsel was largely unacceptable and unethical in a complicated age discrimination case. Furthermore, the Court expressed dissatisfaction with the fact that defendant had only produced 22 pages of documents in response to plaintiff’s discovery requests and had self-interested employees collect the documents. The Court concluded that defense counsel’s lack of active oversight was “improper and a practice that can lead to incomplete discovery production” or perhaps even worse, “inadvertent destruction of responsive information and/or documents.”
The District Court considered allowing plaintiff the opportunity to gain direct access to the ESI pursuant to Rule 34, but declined to do so, largely based on the fact that there was still five months before the discovery deadline. While the court allowed defendant one last chance to provide complete responses to plaintiff’s discovery requests, this was contingent on defense counsel’s active involvement and oversight in the process. Ultimately, the District Court granted plaintiff’s motion in part, requiring the parties to meet and confer over the requests.
This case is a reminder that counsel should not consider a Rule 26(g) certification to be a “mere formality.” Instead, when counsel certifies as to the completeness of discovery responses pursuant to Rule 26(g), they must recognize that the legal and ethical duty to ensure the accuracy and completeness of these responses attaches before the attorney makes such a certification. Counsel should be actively involved in the search, collection, and production of documents, and at the very least, have a full understanding as to exactly what the client has done to comply with its discovery obligations.