Insights
Insights That Help You Stay Ahead
The legal and regulatory landscape surrounding data is constantly evolving. From AI and cybersecurity to privacy, litigation, and information governance, our team shares practical insights designed to help legal departments, law firms, and organizations make informed, defensible decisions.
Perspectives
Navigating Unsupervised Self-Collection in eDiscovery Cases
“The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client's discovery search, collection and production. It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to “self-collect” discovery without any attorney advice, supervision, or knowledge of the process utilized.” Equal Employment Opportunity Comm'n v. M1 5100 Corp., 19-CV-81320, 2020 WL 3581372, at *2 (S.D. Fla. July 2, 2020).
Legal Implications of Unsupervised Self-Collection in eDiscovery:The recent case of ZAGG Inc. v. Ichilevici 2024 WL 557899 (S.D. Fla. 2024) underscores the significant legal implications of unsupervised self-collection in eDiscovery. The court emphasized that attorneys have a duty to supervise or counsel their clients during the discovery process. This ruling highlights the importance of proper oversight to ensure compliance with discovery requests.
Challenges Faced in Unsupervised Self-Collection:Incomplete collection: Unsupervised self-collection may result in inadequate gathering of relevant documents, as seen in ZAGG where the plaintiff sought additional financial documents.Lack of expertise: Without proper guidance, clients may lack the necessary skills to conduct thorough searches and identify responsive documents.Failure to preserve evidence: Important electronic evidence, such as text messages or emails, may be overlooked or not properly preserved during self-collection. Benefits of Counsel Review in eDiscovery Cases:Compliance: Counsel oversight helps ensure adherence to discovery requests and legal obligations.Expertise: Attorneys can provide valuable knowledge in navigating complex databases and identifying relevant documents.Comprehensive collection: Counsel review increases the likelihood that all types of relevant electronic evidence are preserved and produced.Risk mitigation: Proper supervision can help avoid adverse consequences resulting from inadequate discovery practices. Attorneys must stay informed about best practices and legal standards regarding self-collection in eDiscovery. Their involvement is crucial in maximizing the effectiveness of the discovery process and minimizing legal risks. Akeman eDiscovery Services is always available to consult with our attorneys and their clients on best practices for identifying, preserving and collecting client data.
For a more detailed discussion of the risks associated with custodian self-collection, refer to the Bloomberg article authored by Elan Hersh here.
Legal Implications of Unsupervised Self-Collection in eDiscovery:The recent case of ZAGG Inc. v. Ichilevici 2024 WL 557899 (S.D. Fla. 2024) underscores the significant legal implications of unsupervised self-collection in eDiscovery. The court emphasized that attorneys have a duty to supervise or counsel their clients during the discovery process. This ruling highlights the importance of proper oversight to ensure compliance with discovery requests.
Challenges Faced in Unsupervised Self-Collection:Incomplete collection: Unsupervised self-collection may result in inadequate gathering of relevant documents, as seen in ZAGG where the plaintiff sought additional financial documents.Lack of expertise: Without proper guidance, clients may lack the necessary skills to conduct thorough searches and identify responsive documents.Failure to preserve evidence: Important electronic evidence, such as text messages or emails, may be overlooked or not properly preserved during self-collection. Benefits of Counsel Review in eDiscovery Cases:Compliance: Counsel oversight helps ensure adherence to discovery requests and legal obligations.Expertise: Attorneys can provide valuable knowledge in navigating complex databases and identifying relevant documents.Comprehensive collection: Counsel review increases the likelihood that all types of relevant electronic evidence are preserved and produced.Risk mitigation: Proper supervision can help avoid adverse consequences resulting from inadequate discovery practices. Attorneys must stay informed about best practices and legal standards regarding self-collection in eDiscovery. Their involvement is crucial in maximizing the effectiveness of the discovery process and minimizing legal risks. Akeman eDiscovery Services is always available to consult with our attorneys and their clients on best practices for identifying, preserving and collecting client data.
For a more detailed discussion of the risks associated with custodian self-collection, refer to the Bloomberg article authored by Elan Hersh here.
Published Works and Lectures
Elan Hersh, Managing Director
- Legal Week 2026, Speaker, “Collaboration Protocols: Coordinating Defense Counsel, Vendors, and Opposing Parties,” March 12, 2026
- ALM, Legaltech News, Featured, “Collaborating Through the Chaos: A Chat With Legalweek Speaker Elan Hersh,” March 3, 2026
- Relativity and Cimplifi Webinar, Speaker, “Guiding the Generative AI Conversation: How Law Firms Can Lead Corporate Clients Through Litigation Innovation,” August 21, 2025
- Association of Corporate Counsel (ACC) Webinar, Speaker, “Introduction to Relativity aiR,” June 3, 2025
- Strafford Webinar, Speaker, “Negotiating ESI Protocols: Pros and Cons, Strategies, Best Practices, Avoiding Pitfalls of Overuse,” January 21, 2025
- MyLawCLE, Speaker, “Using Self-Collection Tools to Gather ESI: Legal Risks in eDiscovery: Custodian Self-Collection and Data Privacy,” December 4, 2024
- 2024 Techno Security & Digital Forensics Conference, Speaker, “Myth-Busting: eDiscovery Costs and Complexities,” June 5, 2024
- UF Law E-Discovery Conference, Speaker, “eDiscovery Quick Tips: Mastering the Essentials in a Flash,” February 29, 2024
PineWest Data Intelligence provides data management services as a division of Akerman LLP.