LeClairRyan on E-Discovery: Getting the Most From the Custodian Interview

 By Daryl Shetterly

Interviewing key custodians is a crucial phase of the eDiscovery lifecycle.  Information gathered during this phase helps you identify the distribution of relevant documents in the corporation and gives you valuable information as you continue to identify relevant documents - as well as aids in privilege review, deposition preparation and trial preparation. 

It is important that custodian interviews are properly documented for defensibility purposes.  To aid in documentation and to ensure consistency across interviews, our teams often develop an interview form that allows the interviewer to type the answers directly into the document during the interview.

The questions asked during the interview will depend on the facts of each case.  However, here are a few categories of questions you should include on your next custodian interview form: 

Potential Privilege: Being able to identify potentially privileged documents in the data you are collecting gives you valuable information you can pass on to your document review and production team.  Compile the name and email address for each attorney with which the custodian communicated. Use this information to draft a list of search terms to isolate potentially privileged material prior to review and production.  Save time and money by skipping review of these documents by your frontline review team, and instead route these potentially privileged documents directly to your privilege review team.  

Legal Hold Notice: Case law and the Sedona Conference, among others, indicate that the preservation obligation does not stop with a properly drafted and distributed litigation hold notice.  It is important that you follow up with the custodians.  Use the custodian interview to ask whether they received, understand and are following the litigation hold.  A blank stare followed by the question, "litigation, what?" is generally not a good sign.

Scope of Relevant Documents: Develop a checklist that tracks the relationship between each custodian and category of the document requests - so you can see at a glance which custodians have documents responsive to each document category.  This allows you to prioritize documents for production or make exclusion decisions quickly when the theory of the case shifts or issues are dropped.  Tracking this type of information will also help you identify gaps in your collection.  On the flip side, it will also highlight instances where you are collecting the same information from multiple people.  This checklist will help you regardless of how few custodians you have, but it becomes indispensible as your custodian list grows.

Locations of Relevant Documents: In response to our questions regarding the location of documents potentially relevant to the categories discussed above, custodians will often identify just a few locations.  However, if you ask specific questions and look around their office, you may find additional files in other folders on their computer or in binders, boxes and external media on their shelves.  Walk through a list of potential data sources with each custodian to jog their memory.  The list should include:

  • corporate email account;
  • personal email account;
  • corporate computers;
  • personal computers;
  • network servers;
  • databases;
  • portable media, e.g. CDs, DVDs, external hard drives;
  • social media sites, e.g. Facebook, LinkedIn and Twitter;
  • text messages or other information on personal or corporate smartphones that are not synced with a computer;
  • audio, e.g. voicemail and Skype (yes, there is data to collect from Skype);
  • instant messaging; and
  • document management tools, e.g. SharePoint.

Although this blog focuses on eDiscovery issues, remember to ask about paper documents as well.  Paper documents may be in their office, in centralized departmental storage or in off-site archives.

Technical Specifications: For each source of potentially relevant information identified, you should note description information and technical specifications of the storage device on the interview form.  This will streamline document collection and ensure that, if document collection occurs subsequent to the interview, the collection team collects from the correct locations.  It also makes it easier to later audit your collection steps.  Remember that while the custodian may point to a computer and say that everything is on that computer, the trend toward cloud storage makes it increasingly likely that the data is stored in the cloud rather than on the actual machine.

Other Custodians: Ask each custodian if there are others that may have relevant documents - inside or outside the company.  The names you compile will give you early insight into the distribution of relevant documents across your organization in the event your company does not have technology deployed that can provide this type of information.  This list will also help you if you later need to perform additional collections for a particular category of documents.

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