Context: Questions from the War Room
These questions arise from real discovery disputes observed in legal operations, team meetings, and urgent Slack threads. They typically emerge after a mistake has been made, such as a deposition where the custodian admits they "just looked through their phone," a motion to compel because the opposing party can't explain their search, or a call from outside counsel questioning why IT wasn't involved in the collection.
The pattern is clear: teams assume self-collection is adequate until a court says otherwise. The EEOC v. Yas Caribe case is a recent example where unsupervised self-collection led to "discovery on discovery", additional discovery to determine if the initial discovery was done correctly.
Let's address the questions you're actually asking.
Q1: Can't we just have the custodian search their own devices and send us what they find?
No, not without attorney supervision.
Rule 26(g) of the Federal Rules of Civil Procedure requires the attorney signing a discovery response to conduct a "reasonable inquiry" before certifying it's complete. Courts interpret this to mean you can't simply hand a document request to a client and expect them to handle it independently.
In Yas Caribe, the defendant's attorney argued that supervising the client's search would make him a potential witness. The court disagreed, stating that supervising or assisting a client's document search does not make an attorney a witness. In fact, such supervision may be necessary.
What "supervision" means in practice:
- Explain what's responsive, not just forward the request.
- Discuss search terms or folder locations with the custodian.
- Review what they've collected before producing it.
- Document the process used.
The custodian can do the clicking, but you need to guide the search and verify the results.
Q2: What happens if we don't supervise and something goes wrong?
You face "discovery on discovery", the other side can investigate your collection process.
Courts describe the federal discovery system as an "honor system" where parties rely on representations that production is complete. But when there's evidence of inadequate searching, that trust erodes. In Yas Caribe, the plaintiff obtained relief to compel defendants to clarify the steps taken to locate documents, whether responsive documents exist, and whether anything's being withheld.
The threshold for triggering this isn't high. In Yas Caribe, it was crossed when the custodian admitted he hadn't searched his own email or texts, hadn't searched the alleged harasser's devices, and hadn't instructed anyone else to search. The court noted that while a single missing text message doesn't normally justify discovery on discovery, a pattern of inadequate effort does.
You also risk Rule 26(g) sanctions. The rule allows courts to impose "an appropriate sanction" if an attorney certifies a response without reasonable inquiry.
Q3: Our client says they already looked and there's nothing. Do we need to verify that?
Yes, especially when electronically stored information (ESI) is involved.
An attorney can rely on client assertions "as long as that reliance is appropriate under the circumstances," according to the 1983 Advisory Committee Notes to Rule 26(g). But a discovery request for ESI in cellphones and computer systems requires closer supervision.
In Yas Caribe, the defendants produced a "Messages Search Certification" signed by one custodian stating he'd supervised another custodian's cellphone search. The court found this insufficient because the underlying search itself was inadequate, no search terms documented, no explanation of method, and testimony showing the first custodian hadn't even searched his own devices.
You don't have to personally scroll through every email. But you need enough knowledge of the process to certify it was reasonable. Ask: What folders did you check? What date range? Did you search texts? Did you check archived mailboxes?
Q4: What if the client changed phones or deleted messages before we got involved?
Document what you know and when you knew it.
Courts recognize you can't supervise collection that happened before you were retained. But once you're aware that relevant ESI exists (or existed), you have duties under Rule 26(g) to inquire about it.
In Yas Caribe, the court noted the attorney's concern: "How would I know if they are showing me everything, or if messages were deleted, or if they have changed telephones?" The answer isn't to avoid asking. It's to ask, document the answers, and potentially bring in forensic help if there's reason to believe relevant data's been lost.
If your client tells you they switched phones and didn't transfer messages, disclose this in your discovery responses. Silence isn't an option once you know.
Q5: We're a small team without eDiscovery specialists. What's the minimum viable supervision?
At minimum: documented search terms, custodian interviews, and sample review.
You don't need a full eDiscovery platform for every matter. But you need a defensible process:
- Interview the custodian about where potentially relevant documents live (email, shared drives, texts, paper files).
- Agree on search terms or folder locations in writing.
- Have the custodian run the search using those terms.
- Review a sample of what they've collected to verify it's responsive.
- Document the process in a memo or email chain.
If the custodian says "I just looked through my stuff," that's not defensible. If you can produce an email chain showing you discussed search terms and reviewed sample results, you're in much better shape.
Q6: When do we actually need forensic collection?
When there's evidence of deletion, when the stakes are high, or when the other side demands it.
Forensic collection isn't required in every case. But it becomes necessary when:
- Custodians admit they deleted potentially relevant material.
- There's reason to believe the custodian isn't being truthful.
- The matter involves high stakes (significant damages, regulatory scrutiny).
- Opposing counsel raises credible concerns about incomplete production.
In Yas Caribe, the plaintiff sought forensic inspection of two custodians' cellphones based on testimony showing inadequate self-collection. The court's opinion suggests this request was reasonable given the circumstances.
Don't wait for a motion to compel. If your client's testimony in a deposition reveals they didn't search properly, talk to your team about forensic options before the other side files.
Where to Go for More
Start with Rule 26(g) and its Advisory Committee Notes. The Sedona Conference publishes practical guidance on proportional ESI collection. Your state bar likely has ethics opinions on attorney duties in discovery.
And talk to your IT team or an eDiscovery vendor before you're in crisis mode. The conversation's easier when it's hypothetical.
