The subject amendment could create unnecessary discovery disputes for companies who "self-collect" ESI. The amendment sets forth standards for defensible ESI collection i.e. collection of data through a reliable "process of digital identification" as certified by a "qualified person." Since this standard applies to self-authentication of ESI under Rule 902, opposing counsel may use the standard to challenge the collection of ESI in general if the collection did not provide a reliable "process of digital identification" or was not performed with the assistance of a forensic or IT professional or other "qualified person."
Rather than risk discovery challenges, it is best that the collection of ESI continue to be performed by a "qualified person or vendor like NightOwl Discovery" with the requisite knowledge or expertise for properly collecting, verifying, and preserving ESI pursuant to Fed. R. Evidence 902(13) (14).
Director of the Client Advisory Group (CAG)