Why Clients Shouldn’t “Self-Select” Documents for E-Discovery

A recent opinion in a case against Ford Motor Company over unintentional vehicle acceleration demonstrates why it is often inadvisable to let data custodians collect their own documents to produce during discovery in litigation.

In Burd v. Ford Motor Company, Case No. 3:13-cv-20976 (S.D. W. Va. July 8, 2015) and Johnson v. Ford Motor Company, 3:13-cv-06529 (S.D. W. Va. July 8, 2015), Ford permitted its employees to “self-select” relevant documents to produce in litigation. For the “self-selection” process, Ford gave the employees information about the case and suggested terms to use for searches although the parties had not agreed on search terms, nor agreed to an e-discovery protocol. The court expressed “misgivings” about Ford’s collection method and ultimately concluded that questions about the thoroughness of Ford’s document production justified further investigation into its collection efforts.

Depositions Reveal Custodians May Not Have searched for All Relevant Documents

In the case, the plaintiffs allege that certain Ford vehicles have defective electronic throttle control (ETC) systems. Depositions of Ford employees revealed that some had not looked for documents relating to ETC systems and certain other employees identified as not possessing relevant documents actually authored relevant documents produced during discovery. As a result, the plaintiffs questioned the reasonableness of Ford’s “self-selection” process and sought discovery on Ford’s collection efforts, including a deposition of a corporate representative.

Ultimately, the issue came to a head via competing motions. Ford sought an order prohibiting discovery on its document retention policies arguing it was improper absent evidence of spoliation and that discovery about its collection efforts invaded the attorney-work product doctrine.

For their part, the Plaintiffs sought an order prohibiting Ford employees from “self-selecting” documents to produce in discovery.

The Court Weighs In

In the end, the court largely sided with the plaintiffs and rejected argument that spoliation must be shown before discovery is permitted on document retention policies. The court also disagreed that search terms are protected by the attorney work-product doctrine:

Contrary to Ford’s contentions, discovery of document retention and disposition policies is not contingent upon a claim of spoliation or proof of discovery abuses, and may be accomplished through a Rule 30(b)(6) witness. . . . Plaintiffs have identified several instances in which document productions have been slow-to-come, incomplete, or inconsistent. Furthermore, they have supplied excerpts of deposition transcripts in which key employees testified to performing either limited searches for relevant documents, or no searches at all. The reservations expressed by Plaintiffs regarding the thoroughness of Ford’s document production and the method by which its employees have conducted the review of their records are sufficiently corroborated to justify investigation into the reasonableness of Ford’s search.

Ford’s assertion that sharing facts about its search terms and the identities of custodians who searched their records will require disclosure of attorney work product is equally unavailing. . . [s]uch information is not subject to any work product protection because it goes to the underlying facts of what documents are responsive to Defendants’ document request, rather than the thought processes of . . . counsel.

(Internal citations omitted).

While the court deferred ruling on the reasonableness of Ford’s “self-selection” collection efforts pending deposition testimony from a corporate representative, it granted the plaintiffs’ request for more transparency about the discovery process and compelled Ford to disclose its document collection procedures.

Two Important Lessons: Transparency is Important and Custodians Should Not Collect Their Own Documents

This case offers two lessons about electronic discovery.  First, transparency is a must. When both parties discuss and disclose the processes and efforts used to collect documents, it curtails many disputes. That is why e-discovery and ESI protocols are very helpful in cases involving significant volumes of electronic documents. (For a list of items to include in e-discovery protocols, check out this article.)

Second, it is often inadvisable to let individual litigants and custodians collect their own documents because they are not trained to do so and may not understand the legal significance of the documents they are tasked with identifying. Additionally, permitting custodians to select potentially relevant documents might introduce a level of subjectivity and self interest inconsistent with the spirit of discovery in litigation.

However, that is not to say custodian input is not important the process. Custodians are often in the best position to identify sources of relevant information.  To assist with the identification of potential sources and locations of relevant evidence, ESI custodian questionnaires and interviews are often quite helpful.

Utilizing legal hold and document archiving software or hiring third parties to assist with ESI collection efforts may prevent coming into the same judicial scrutiny as Ford.