Why can’t my client just forward me the relevant emails for discovery?

An attorney forwarded me 10 emails from the client, each of which was relevant to the case and which had been forwarded to her.

“Can you put these in the document database?”

These were the most pertinent emails to the dispute, according to the client. He was going through his inbox and sending her more. This is helpful context at the start of the case; I’ll add them to my case chronology. I’ll use them to design search terms and date ranges for collection.

But they’re not going in the discovery database.

We’ll start with the very practical considerations and then move into the legal ones:

#1. If I put them in the database in this form, the metadata will show an email from the attorney to me on this date—not an email from client to the plaintiff from June. I could print it to PDF before it’s ingested, but (a) depending on the eDiscovery software, that metadata may end up being restored during processing, and (b) Outlook will put my name on the top like this:

We need to collect the important email in a way that preserves its real metadata and leaves the attorneys out of it.

#2. The forwarded documents may not be the most complete version of this email chain. What if the client responded in a way that constituted anticipatory repudiation of the parties’ contract, but that response is in his “Sent” folder and he does not remember to look there, or thinks his response was unimportant posturing?

#3. “Self-Collection” is not a responsible way to do eDiscovery.

Is your client’s CEO leery about letting attorneys go digging through his inbox? We would be too. (You would not believe the things I have seen in clients’ “business” emails.) But in all but the smallest cases, it is improper to leave it up to the client to decide where to look and determine what is responsive or important.

For a cautionary tale, check out Equal Emp. Opportunity Comm'n v. M1 5100 Corp., No. 19-CV-81320, 2020 WL 3581372, at *3 (S.D. Fla. July 2, 2020) (internal citations omitted), where counsel left collection up to his client’s employees in a complicated discrimination case:

Here, Defendant's counsel seemingly failed to properly supervise his client's ESI collection process, but then he signed off on the completeness and correctness of his client's discovery responses. An attorney's signature on a discovery response is not a mere formality; rather, it is a representation to the Court that the discovery is complete and correct at the time it is made. An attorney cannot properly make this representation without having some participatory or supervisory role in the search, collection, and production of discovery by a client or interested person, or at least having sufficient knowledge of the efficacy of the process utilized by the client. …

The Court is especially concerned that Defendant has only produced 22 pages of documents total in this case and that two self-interested employees allegedly collected the responsive documents and information.

A “proper” document collection can vary with the needs of the case, and the document custodians within your client are the best resource to point you to where the critical materials are stored. But it is counsel’s responsibility under Fed. R. Civ. P. 26(g) to supervise the process and to collect or preserve broadly. If you don’t go through the process of collection and review, you may miss out on a silver bullet document or a game changer, and you may be exposed to sanctions or, like the defendant above, a hearty “benchslap” from the judge.

Forwarded emails from your client can be useful for getting your arms around a new case. But we’ll see them again when we properly collect them from the client’s machine or server. For now, let’s keep them out of the discovery database.