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The Pros and Cons of Physical and Logical Collections

By Veeral Gosalia
February 26, 2013

In a July, 2012 decision, Judge Shira Scheindlin found custodial self-collection inadequate in certain circumstances (National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012). As she stated in her opinion: “Most custodians cannot be 'trusted' to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.”

The specific decision related to government collections in support of Freedom of Information Act (FOIA) requests, but this opinion may have a wide-ranging impact on corporate collection practices. Companies involved in legal proceedings or investigations will likely need to reevaluate their current policies in the coming months to ensure that important information is collected in a defensible manner, and one initial question to answer is which collection methodology should be used.

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