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(Franck Boston)

Your company is a party to a lawsuit, either as plaintiff or defendant. Outside counsel has been retained and a litigation hold notice issued. The other side serves extensive requests for production of documents, including electronic records. The first step on the road to producing relevant, nonprivileged documents in response to those discovery requests is locating them. That in turn requires identifying your employees—commonly termed custodians—who know what relevant documents exist and where they are physically stored in the company’s files. Custodian interviews are a cost-effective means of finding out this information at the outset of discovery.

Identifying the Custodians

Identifying who the custodians are may require some preliminary investigation, especially in companies with a large number of employees or multiple offices, or where a significant amount of time has passed (or employee turnover has occurred) since the underlying dispute arose. Department heads and employees who have already been identified as possible fact witnesses are a prime source of information about who else at a company may have knowledge of the facts of the case.

Investing in an initial round of preliminary interviews with a few critical custodians—or even just the first few people identified—will pay dividends. The first group of interviewees typically will be able to point to additional custodians while crossing other names off the list. They will likely also be able to identify records custodians for shared data sources like databases and records created by former employees. Any incremental cost from adding this step to the overall process will be more than worth it in the event of a later challenge to the completeness of the custodian list.

Using Custodian Questionnaires

Some companies have adopted the practice of distributing a document-collection questionnaire to potential custodians. Questionnaires are often sent in conjunction with the litigation hold notice. Typically in-house legal staff is tasked with distributing the questionnaires and collating the responses, as well as answering custodians’ questions.

This practice has several purposes. The return of the questionnaire can in itself serve as an acknowledgement that the litigation hold notice has been received and read. The questionnaire serves to get employees thinking about what types of records they keep and where files are saved. In addition, specific questions can be included to flag issues to be discussed at the interview, such as use of personal email accounts for work and documents saved to thumb drives or other external media. Another purpose is to identify departmental shares, databases and similar repositories that are accessed by multiple custodians.

Working with IT

The Federal Rules of Civil Procedure refer to the broad category of electronic records—email, Microsoft Word files and Excel spreadsheets, PDF documents, websites, database records, text messages and so on—as electronically stored information (ESI). Custodians are potentially creating and saving ESI on any or all of network drives, local hard drives, email servers, backup locations (personal or corporate), cloud-based storage, SharePoint, mobile devices and a whole host of proprietary databases and document-management systems.

For companies with in-house IT staff or a contracted IT resource, having a preliminary conversation to learn how company data is stored is a must. Creating a data map of the potential universe of data sources up-front will expedite the interviews by helping the interviewer ask the right questions to get employees focused on where they store documents and how they interact with shared data systems. In-house legal staff or a tech-savvy employee may be able to provide this information in the absence of an IT person. Alternatively, the first few interviews can do double duty as an opportunity to inventory the company’s data sources.

Learning the Lingo

Employees often use several different names to refer to the same network space. For instance, one employee may call her personal network folder the “H-drive,” another may call the same location the “home drive” and IT has officially named it “\\personal[last name].” Sorting out these types of details before starting the custodian interviews saves everyone time and aggravation. A glossary of insider terms enables the interviewer to more effectively and efficiently communicate with custodians, IT and the e-discovery vendor. An added cost-saving benefit is that the glossary can be reused in subsequent litigation, often with only minor revisions to bring it up to date.

Conducting the Interviews

The most effective custodian interviews are conducted at the custodian’s workstation. The interview process can be intimidating for employees. Being in their own environment can help alleviate some of that stress, while a face-to-face meeting is simply more comfortable for many people. Interviewers also benefit because they can see how custodians react to questions. In addition, it’s easier for custodians to remember where they keep their documents when they’re at their workstations and logged in to their computers. It’s not only a memory prompt for the custodians, but looking at folders on the computer and looking around the workstation for filing cabinets and electronic devices alerts interviewers to ask follow-up questions.

In some cases, in-person custodian interviews are impractical for reasons of distance, cost or scheduling. The next best thing is a combined teleconference and online meeting where the custodian “shares” his computer screen with the other meeting participants.

Whether in-person or remote, the ideal attendee list for custodian interviews is, aside from the custodian, outside counsel, the e-discovery vendor who is making the collection and (where one exists) the IT contact for the case. In many cases, in-house legal staff will participate, or make themselves available during the interview to answer questions or simply provide reassurance to the employee.

Custodian Interviews as a Fact-Finding Tool

The main goal of the custodian interview is to comply with the client’s discovery obligation to locate responsive documents. However, it also provides a unique opportunity to learn about substantive issues in the case, flag possible problem areas, and evaluate the employee’s strengths and weaknesses as a potential witness. Interviews are conducted early in the litigation, with the consequence that counsel may know little more about the case than the allegations described in the complaint. Getting the perspective of key employees, while comparing one employee’s answers to another’s, is an invaluable fact-finding tool. Learning early on who wrote hot documents, was responsible for critical projects, acted as point person for communications with the other party and the like will, among other benefits, help outside counsel respond to written discovery requests and identify deposition witnesses.

Conducting Supplemental Interviews

Litigation can last a long time. Employees change positions or leave the company. Documents continue to be created after the interview. New issues arise as discovery is ongoing. Any of these scenarios can create a need for supplemental custodian interviews. The first step is to analyze if and how the employee has been involved with the litigation since the initial interview and collection. For custodians who have had ongoing involvement in either the legal case or the underlying work that’s in contention, a supplemental or exit interview can be conducted. The interview and collection documentation should be reviewed prior to performing a follow-up interview so it is clear what files are new and what has already been collected. Finally, it’s important to cooperate closely with department managers, in-house legal and IT to preserve, review and, if necessary, make supplemental collections from departing employees’ computers and other data sources.

Documenting the Process

A thoroughly documented process is essential to making sure that all the bases are covered in preservation, collection and supplementation. Having a defensible process in place for litigation hold notices to custodians and IT (don’t forget about IT!), custodian identification and interviews, initial and supplemental collections, and supplemental interviews is critical in responding to discovery motions. Leveraging the capabilities and experience of outside counsel and the e-discovery vendor to contemporaneously document the decisions made at each step of this process is money well spent compared to the cost of scrambling to reconstruct the record—or worse, paying a sanctions award.

Start by creating a custodian interview form that documents the when, where and who of the interview; the files and data sources identified by the custodian; and other notes like substantive case information and the custodian’s knowledge level and demeanor. The form, which should be completed during or soon after the interview, serves as the instructions for the document collection. This procedure will also serve to collect intelligence on the custodians and as a springboard for further fact investigation and legal team discussions. Information from the forms can be incorporated into a data map and collection-tracking spreadsheet. Lastly, the forms also can be a useful resource in drafting motions and preparing for depositions.

Conclusion

The custodian interview is a cost-effective tool to locate relevant documents and simultaneously learn about substantive issues in the case. While interviews are typically conducted by outside counsel with the assistance of the document vendor, there are strategies in-house counsel can employ to facilitate the process. In addition, creating and documenting defensible processes for identifying custodians, conducting interviews and supplementing collections will place e-discovery practitioners and their clients in a strong position to defend against challenges.

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