Discovery is Easier When You Have Someone to Defensibly Collect ESI

A Plaintiff sought the production of email and text messages from the Defendant in an employment case with civil rights causes of action. Elkharwily v. Franciscan Health Sys. (W.D.Wash. June 30, 2016, No. 3:15-cv-05579-RJB) 2016 U.S. Dist. LEXIS 85651, at *2-3.

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The Defendants objected on several privilege grounds, plus the fact they did not have an email archiving system. They explained that, “there [was] no single location or application that can be queried for email matching specified criteria. Email can only be searched if it is maintained in a live email account.” Elkharwily, at *3.

The Defendants explained that to comply with they request they would have to search the live email of five custodians. Id. Other custodians were also identified in additional briefing. Elkharwily, at *7.

US District Judge Robert Bryan held that the Defendant should conduct searches of the “live” email accounts for the production of relevant and non-privileged email. Elkharwily, at *6-8. Moreover, the Defendant conceded that the searches could be performed “relatively quickly.”

This is the right result, but the “how” to search for ESI should give everyone pause. It sounds like the Defendants had not retained anyone to collect responsive email. It appears from the context of the opinion someone from the Defendant is running basic email searches over their accounts to find responsive email communications. There are more efficient ways to perform this collection that likely would have been cheaper than motion practice.

A collection expert could have used a variety of forensic tools to defensibly collect email messages from the company’s server. If for some reason there is not a server with email, it would be good to know what the Defendants use for their email. Perhaps if it a webmail service, a collection expert could collect webmail directly from the accounts. If the email was only on the individual computers, a collection expert could collect from each machine. Whatever form the email is in, it would be preferred to have someone trained to collect email in a defensible manner, with a chain of custody report, that documented each step of the collection process.

The Defendant did not produce any text messages. Their argument was their employee text messages were outside of their possession or control, because they did not issue their employees cell phones. Elkharwily, at *9-10. The Court agreed and denied the motion to compel.

This raises the question that if the Defendants knew their employees were texting as a standard business practice, does that create “control”? Discovery would become highly problematic if employers tried using BYOD as a shield to discovery requests by refusing to issue company devices. Moreover, if employees were using personal devices for work, the Plaintiff could propound discovery on the individual parties in the case. This would switch the production costs to the individual defendants and third-parties.

Discovery is easier if the right people are performing the collection of ESI. The quest to reduce costs by NOT employing experts can drive up costs with motion practice when collection is not performed correctly. Dollar for dollar, it would be more cost effective to have an expert collect email from specific individuals than slugging out a discovery dispute in court.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.