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Creating a Custodian Interview Script – Conducting Effective Custodian Interviews, Part 2

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A short series reviewing custodian interviews, why they matter, and how to do them effectively


Creating an Interview Script

Conducting effective custodian interviews requires asking a lot of questions, both legal and technical, and consequently, custodian interviews are generally scripted. Scripting ensures that interviews are complete, that they are consistent with each other, and that they are consistent across interviewers (in the event more than one is involved in the process). All of that completeness and consistency enhances the defensibility of your efforts.

Such scripts must always be customized for each organization and case and must often be customized for different groups or classes of custodians, but they are always focused on gathering the same general categories of information.

Category 1 – Who are you and what do you do here?

We start with the simplest category of information: biographical.  Questions about identity, role within the organization, tenure at the organization, and areas of responsibility should all be asked – both to understand how they fit into the organization and to understand what types of materials they might be likely to have. Additionally, you will want to establish the nature and distance of the individual’s connection, if any, to the events underlying the matter in question.

Category 2 – How do you do what you do?

The second category of information is the largest and is likely to involve the most questions (and the most technical detail). In this category, you are attempting to get a picture of the kinds of materials this individual generates and receives in their work, as well as the hardware and software they use to do it, so that you can properly scope and plan your preservation and collection. You are trying to learn where they store their files and whether there are work materials on their phone, in the cloud, or at their home.  You are trying to learn whether and to what extent the organization’s usage policies are being followed, so you know whether or not they reasonably can be relied upon. You may also need to inquire about social media usage.

Category 3 – With whom do you communicate and how?

The third category of information is the second largest and is closely related to the prior one. In this category, you are attempting to get a picture of the work-related communication activities of the individual. This includes both the key individuals inside and outside the organization with whom the individual regularly communicates and details of the media they use to do it (e.g., email, Skype, Slack, etc.). You may also be inquiring specifically about their communications with key individuals or organizations relevant to the matter. As with the second category, this information is crucial for properly scoping and planning preservation and collection activities.

Category 4 – To whom else should I be speaking?

The fourth category of information is small but very important. At the point in your project that you begin custodian interviews, you will have given some thought to who is likely to have materials and knowledge.  Others will have likely given input. But, until real, potential custodians are spoken to, the identification of the right custodians is mostly conjecture. Far better than you, the individual employees will know: who knows what, does what, and is connected to what. Asking them to suggest other potential custodians is a key step in ensuring completeness.

Category 5 – Do you understand what we’ve asked you to do about this?

Our last universal category is another short but important one.  A key part of making your preservation efforts defensible is ensuring that individuals who receive a legal hold actually understand what it is asking them to do and are doing it. The custodian interview process provides an excellent opportunity to discuss this with each potential custodian, answer any questions they have, and ask them to confirm that they will comply. Additionally, as you go through the custodian interview process, you may identify new relevant source types that require revision to and reissuance of the relevant legal hold. Early in an eDiscovery project, all of these activities are unavoidably intertwined and iterative.

Category 6 – Are you a department?

Our final category of information does not apply to all custodians, but is still significant enough to warrant top-level inclusion.  As we discussed in the last Part, some of those you interview will be departmental custodians. For departmental custodians, additional information needs to be gathered about departmental records and systems, both internal and external, including the relevant technical details for preservation and collection of those materials from those systems. Additionally, you will need to discuss the application of the legal hold to the departmental records, including any automated janitorial functions requiring suspension. Relevant IT systems might include email servers, document management systems, client relationship management systems, content management systems, enterprise resource management systems, and more.


Upcoming in this Series

In the final part of this short series, Custodian Interview Tools and Logistics, we will conclude our review of custodian interviews by talking about tools and logistics.


About the Author

Matthew Verga, JD
Director, Education and Content Marketing

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences.  A ten-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design.  He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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