Crane on Law by James Crane

Corporate counsel is always dealing with the challenges of controlling costs and providing their corporate client with the most defensible position.  One question that always comes up is "why shouldn't we just collect our own data?"  It's a good question.  Many corporations have an IT department staffed with talented and available personnel. 

The short answer is that sometimes, in-house IT is the "logical" choice for handling the collection of data, if they are properly trained and meticulous about documentation.  However, in many cases, it's just not the best solution.  Here are five basic reasons why collection by in-house professionals is not the way to go:

• 1) Danger of Compromising Evidence: This has to be the biggest reason. If an in-house person tramples all over important metadata or otherwise alters electronic evidence, opposing parties will have a field day with spoliation arguments.
• 2) Objective Position of Third Party: When questions regarding the data collection become important, it is always more credible for a third-party to be the witness or expert in hearings, settlements, or trials.
• 3) IT Should be Focused on Business: At first, it may seem like a small thing for an in-house person to collect data. However, as litigation or investigations take on a life of their own, in-house IT can become deeply embroiled in the non-business function of collection.  As a result, their proper business role may suffer or be entirely ignored.
• 4) Complicated Relationships: One overlooked aspect of in-house IT conducting collections or investigations is the very human and very real emotional aspect of collecting sometimes incriminating data from colleagues and possibly friends. There are many potential issues surrounding loyalties and interpersonal relationships, especially in whistleblowing cases or other contentious matters.
• 5) Experience: Lastly, the advantage that an experienced third-party examiner can provide in depositions, hearings, or trials should not be underestimated. A third-party will never be subjected to the same harsh scrutiny as an in-house IT collector.

I am interested in hearing your thoughts or stories regarding this issue.