by Kelly Twigger
The risks of self-collection in ediscovery continue to be a central theme in courts across the country. A decision from Magistrate Judge William Matthewman in the Southern District of Florida, EEOC v. M1 5100 Corp., serves as a stark reminder that attorneys must actively supervise the identification, collection, and production of electronically stored information (ESI) to comply with their obligations under Rule 26(g) of the Federal Rules of Civil Procedure.
Although this decision was issued in 2020, its relevance has only increased as courts continue to scrutinize attorney oversight in ediscovery. The rise of modern collaboration tools, mobile devices, and AI-driven document review has made defensible data collection even more complex. But the core issue in this case—whether attorneys can rely on clients to conduct their own searches without supervision—remains unchanged.
This case highlights the dangers of allowing clients to conduct their own searches without proper legal oversight—an issue that arises frequently, particularly in employment litigation. Whether you’re outside counsel, in-house, or litigation support, the practical takeaways here apply to anyone responsible for ensuring defensible ediscovery practices.
What Happened in EEOC v. M1 5100 Corp.?
The EEOC brought an age discrimination lawsuit against M1 5100 Corp., and the parties clashed over discovery responses. The defendant, in response to a Request for Production (RFP), produced only 22 documents—culled from just two interested witnesses. This prompted the EEOC to question the adequacy of the defendant’s search efforts.
When the EEOC raised concerns during a meet and confer, defense counsel admitted that they did not know how their client conducted the search for responsive documents. That response caught the court’s attention, particularly in light of Rule 26(g), which requires attorneys to certify, after a reasonable inquiry, that discovery responses are complete and correct.
The Court’s View on Self-Collection
Judge Matthewman found the defense’s approach deeply problematic. The court emphasized that Rule 26(g) imposes a duty on attorneys to have knowledge of, supervise, or counsel the client’s discovery efforts. Here, the facts suggested that defense counsel had relied entirely on their client to search for and identify relevant ESI—without providing guidance or oversight.
Why is that a problem?
- Risk of Incomplete or Inconsistent Productions
Self-collection often leads to gaps in production and inconsistent responses. When left to their own devices, custodians may inadvertently miss relevant documents, self-select to protect themselves from bad documents, apply inconsistent criteria, or overlook sources of ESI—especially in complex cases. - Increased Likelihood of Privilege Waiver or Spoliation
Without attorney supervision, custodians may fail to preserve key data, misapply privilege designations, or delete critical information before it is reviewed. In some cases, this can lead to sanctions or adverse inferences. - Violating Rule 26(g) Can Lead to Court-Imposed Consequences
Signing discovery responses is not a mere formality. Attorneys who sign off on deficient productions without conducting a reasonable inquiry could face sanctions, cost-shifting orders, or reputational damage.
Why This Decision Still Matters in 2024
While this case was decided in 2020, its principles remain as relevant today as they were four years ago—if not more so. Courts have continued to take a hard stance against unsupervised self-collection, particularly as data sources become more complex.
Litigators must now grapple with cloud-based platforms, ephemeral messaging apps, and AI-generated content, all of which introduce new challenges in collection and review. Yet the core issue in EEOC v. M1 5100 Corp.—attorney responsibility for discovery oversight—remains unchanged.
We continue to see courts reinforcing the same principles set forth in this case:
- Attorneys must ensure reasonable inquiry under Rule 26(g)
- Self-collection without oversight leads to deficient productions
- Failure to supervise ediscovery can result in sanctions or cost-shifting
What Should Counsel Have Done Differently?
Judge Matthewman’s ruling underscores what a reasonable inquiry under Rule 26(g) should look like. Here’s what defense counsel could have done to ensure compliance:
- Engage in a Hands-On Review of ESI Sources
Instead of allowing custodians to self-collect, counsel should have:- Identified relevant custodians
- Reviewed available data sources (email, shared drives, chat messages, etc.)
- Defined date ranges and keyword search parameters
- Conduct a Supervised Collection Process
Attorneys should not assume that clients understand what is responsive. Simple steps—such as a screen share review of email inboxes, verifying search criteria, and confirming relevant locations—could have prevented the inadequate production in this case. - Document the Discovery Process
Courts look favorably on parties who can show their work. Counsel should document how searches were conducted, what sources were examined, and why certain materials were excluded. A defensible process can be the difference between compliance and sanctions.
Practical Takeaways
- Know Your Rule 26(g) Obligations (or Your State Equivalent)
Attorneys must certify that discovery responses are complete and correct to the best of their knowledge after a reasonable inquiry. That means actively participating in and supervising discovery efforts. - Don’t Rely on Clients to Conduct Searches Alone
Self-collection without oversight is a red flag in the eyes of the court. Involve legal and technical professionals early in the process to ensure thorough and defensible collections. - Customize Your Approach Based on the Case
Every case is different. The scope of reasonable efforts will depend on factors like volume of data, case complexity, and available resources. However, a basic level of attorney involvement is always required. - Clients May Resist—But Counsel’s Obligations Are Clear
Some clients worry that attorney involvement will expand the scope of discovery and increase costs. However, courts expect counsel to guide and supervise ESI collection to prevent mistakes. Setting expectations early with clients can help mitigate resistance.
Final Thoughts
The court in EEOC v. M1 5100 Corp. stopped short of issuing sanctions, giving the defense another chance to produce documents properly. However, the warning was clear: attorneys must be actively involved in ESI collection, or they risk violating their obligations under Rule 26(g).
This decision remains just as relevant today as when it was issued, as courts continue to emphasize attorney oversight in eDiscovery. With increasing data complexity, the need for structured, defensible collection processes has never been greater.A key takeaway for litigators is that knowledge is power when it comes to eDiscovery. Understanding case law trends and court expectations is crucial to avoiding discovery pitfalls. eDiscovery Assistant provides a curated, searchable database of case law—including decisions like this one—along with practical resources, checklists, and training to help legal teams navigate eDiscovery with confidence. If you need to ensure your discovery process is defensible, our platform can help you find the right cases and best practices—fast.
If you are ready to take charge of your ediscovery, reach out to our team today and schedule a quick demo.
