July 27, 2020 Practice Points

Knowing When It’s Necessary to Take a Hands-On Approach to Discovery

The perils of an unsupervised self-collection.

By Andrew M. Toft

One of the most common problems facing lawyers is their clients’ insistence on providing responses to discovery without the supervision or assistance of counsel—perhaps with the motivation to save money, perhaps with other more nefarious motivation. In EEOC v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc., Civil No. 19-cv-81320 (S.D. Fla. July 2, 2020), however, Magistrate Judge Matthewman gave lawyers a succinct map explaining to lawyers and clients alike the risks of collecting documents and electronically stored information (ESI) for discovery responses without the help of the person or persons the client hired to help them navigate the judicial system.

The matter was before the court regarding two discovery responses and the desire of the Equal Employment Opportunity Commission (EEOC) to inspect the defendant’s ESI. Both in a pleading and at hearing, defendant’s counsel admitted that the defendant had “self-collected” documents and information responsive to the EEOC’s discovery requests without his oversight. The EEOC informed the court that the two individuals who collected the documents and information were self-interested individuals employed by the defendant.

To establish that counsel have “a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection and production, ” the court first cited a portion of Federal Rule of Civil Procedure 26(g)(1) and commentary about Rule 26(g) from the Advisory Committee Notes, case law, and the Sedona Conference Working Group on Electronic Document Production. The court then added that counsel cannot abandon professional and ethical duties by permitting self-collection without counsel having knowledge of the processes used and providing advice and supervision. The order makes quite clear that the court was very displeased by the fact that counsel had not supervised the collection process but then “signed off on the completeness and correctness of his client’s discovery responses.” The judge went on to state that conduct was not only improper but also contrary to the Federal Rules. The court also emphasized a lawyer’s duty to oversee the discovery process, the concern being not only the adequacy of responses but also the risk that data could be corrupted or destroyed, and expressed its displeasure with the repeated delays in discovery caused by the defendant.

Because the discovery deadline in the case was still about five months away, the court gave the defendant “one last chance to comply with its discovery search, collection and production obligations.” The order also emphasized the importance of the conferral process, borrowing a quote from Chief Justice Roberts that “The discovery process, particularly when ESI is involved, is intended to be collaborative.”

Many, if not all lawyers, have dealt or will deal with a client that does not want advice or supervision when it comes to collection of documents and ESI for discovery responses. This situation often puts the lawyer in a difficult position, as was the case here. But as the order points out, counsel had duties and obligations under the rules that take precedence over a difficult client. Counsel’s candor with the court, even when it cast him in a negative light, probably helped both counsel and the client avoid sanctions. Even so, lawyers that wish to avoid this difficult position—and that should be all of them—are encouraged to read the order in EEOC v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. and keep it in mind when the time comes to explain the perils of self-collection to a client. That difficult conversation may not alter the client’s course of action, but the client will have been warned of the perils it will face should it ignore the lawyer’s advice.

Andrew M. Toft is of counsel with Hoffman Nies Dave & Meyer LLP in Greenwood Village, Colorado.


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