Custodian interviews have always been an important aspect of the litigation process, but in the digital age, they are more critical, and more technical, than ever. Information gathered during custodian interviews sets the stage for the entire e-discovery process, supports the development of a detailed data map and aids in preparation for Rule 26(f). Thus, when your company anticipates litigation, your legal department must initiate a litigation hold and conduct custodian interviews, which consist of five vital components.
1. Background data
At the beginning of the interview, the interviewer must take time to explain the process and generally put the custodian at ease. Once the custodian is comfortable, provide the custodian with basic case information to establish a framework of relevance. Obtain the custodian’s name, any various spellings or variations of his or her name, as well as any previous names or aliases. The interviewer must also obtain the custodian’s employment history for the relevant time period, which includes a chronological inventory of his or her professional roles, tenure in those roles and work locations.
2. Location of relevant documents
Next, determine the location of all relevant documents. Before the interview, it is wise to meet with the IT department to discuss the organization’s data infrastructure. IT can help the interviewer understand the corporate standards and policies for where users are allowed to retain data and email, thus the interviewer will be better prepared to initiate a detailed conversation about data location with each custodian.
Ask specific questions and walk through a comprehensive list of potential data sources—business and personal—including computers and mobile devices, email accounts, flash drives, voicemail, Skype accounts, network servers, structured data systems, social media sites, text messages, instant messages and document management tools. The list goes on, but the rule of thumb is to check any device or system that contains memory. Finally, though an overwhelming majority of documents today are generated electronically, do not forget the paper.
3. Privilege communication
A discussion about privilege communication should occur in three steps:
- Inquire whether the custodian communicated with attorneys on the matter, which will determine whether attorney-client privilege must be dealt with at all.
- If the custodian has communicated with attorneys on the matter, create a list of each attorney’s name and contact information.
- Identify and isolate potentially privileged documents.
Separating privileged documents at the custodian interview stage helps create an appropriate list of search terms to ensure privileged documents are not overlooked. This process also increases cost-saving efficiency, as teams can skip the time-consuming review of these documents altogether.
4. Compliance with policies
Compliance is more important now than ever in the e-discovery context. Corporations must have solid policies and documented procedures in place to manage today’s onslaught of electronic data, and the custodian interview is an opportunity to gauge how well an organization deals with this issue.
Ask whether the custodian is aware of the company’s document retention policy, especially when it comes to electronic documents. Confirm that the custodian complies with the retention policy and understands that the litigation hold notice suspends any scheduled disposal/destruction of relevant data. To close any compliance gaps, give the custodian another copy of the latest litigation hold notice, provide the custodian with basic information about the case and then remind the custodian of his or her preservation obligation. Remind the custodian that the matter is sensitive and should not be discussed outside the company.
5. Other important custodians
“Who else knows about this matter?” is an excellent question to ask the custodian. The interviewer must dig deeper to find other custodians who hold or maintain control of potentially responsive materials. Be sure to cover outside vendors, consultants, contractors, public relations professionals, departed custodians and any other peripheral contacts who may have accessed or stored evidence during the relevant period.
IT can assist in this endeavor as well, by providing a clearer picture of the data systems at play and what people information has been routed to during the course of the matter. Early identification of other important custodians helps determine who should receive a litigation hold notice, or a third party subpoena, before evidence is destroyed.
As for the data in the care of the custodian, it is not just the where, it is also the how. Once you’ve identified custodians and potential information sources, you must invoke active measures for preservation immediately, perhaps you should even immediately begin the collection of both paper and electronic documents. It is one thing to determine where data is located, but actually obtaining that data with its metadata intact is another, and you should collect it before people have a chance to disobey the preservation order or mishandle data. Custodial “self-preservation” is not generally defensible against spoliation claims.
Finally, the interviewer should maintain contact with the custodians he or she interviews. Provide the custodian with contact information of whom to call with questions, concerns, or revelations, especially with regard to data locations and compliance issues.
In the e-discovery era, a working knowledge of the purpose and process of custodian interviews, especially as applied to electronic data, will help elevate a corporation’s legal practice to the necessary level of sophistication demanded by courts across the country.