Once you have chosen your vendor, it is very important to establish open lines of communication. Not only should you have a call with your vendor’s entire team at the start of the matter, but you should have constant communication as the assumptions and deadlines change. If you work together as a team, the process will go much more smoothly and both parties will be happier. Jane Gennarelli recently echoed this point in her blog post on Working Successfully with eDiscovery and Litigation Support Service Providers.
Although I advocated self-collection in my recent post about Facebook Self-Collections, I want to note that self-collections are usually not a good way to go. In fact, the ediscovery Team recently posted a blog article about the pitfalls of self-collection. Ralph Losey pointed to a recent opinion out of the Eastern District of Texas, Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011), where the Court entered sanctions for bad faith withholding of evidence against a party who engaged in self-collection.
As the use of social media increases, so does its relevance to litigation. We are now seeing more and more people wanting to collect data from social media sites such as Facebook and Twitter. Initially, a Facebook collection meant getting a user’s permission and sending a subpoena to Facebook. But now, Facebook has streamlined the process by allowing users to collect their own information.
When dealing with discovery, there is a need to find the right balance between collecting all the potentially relevant data in the universe and the cost to do so. But, how does one do that while complying one’s discovery obligations? In general, you need to show good faith that you preserved relevant evidence. Moreover, FRCP 37(c)(1) requires substantial justification for “non-compliance” with FRCP 26 production obligations. Therefore, when defending a motion for sanctions, you need to be able to show the reasoning behind why an item was...