A short series reviewing custodian interviews, why they matter, and how to do them effectively
Custodian interviews for eDiscovery projects are not part of the typical law school curriculum, but they have become an essential skill for attorneys and other eDiscovery practitioners. As the first opportunity in an eDiscovery project to lift up the rock far enough for a peek at what’s underneath, custodian interviews are a vital and valuable data gathering step.
What Are Custodian Interviews?
For any practitioners new to this concept, custodian interviews are interviews conducted with individuals within an organization who are identified as potentially being custodians of data or documents relevant to a legal matter and, therefore, requiring preservation and collection. The purpose of the interviews is to gather information about any such materials, which can be used to plan next steps and subsequent discovery activities. Such interviews may be conducted in a variety of ways and by a variety of individuals, which we will discuss later in this series.
Why Effective Custodian Interviews Matter
When done effectively, custodian interviews can yield an assortment of benefits. First, they act as a safety net for your preservation efforts. Second, they gather valuable information for project planning. Third, they help you control the flow of information within the organization.
- Preservation Safety Net – Despite the December 2015 Rules Amendments, litigants remain concerned about inadvertent spoliation and resulting sanctions. One of the most effective steps you can take to ensure your organization isn’t missing materials requiring preservation is to interview all the individuals with direct knowledge of what’s there. The interviews also provide you with an opportunity to elicit confirmations that custodians understand, are complying with, and will continue to comply with the relevant legal hold.
- Project Planning Information – Gathering details to facilitate project planning is the primary goal of the custodian interview process. You are chiefly trying to learn what things there are and where they are. Custodian interviews obviously impact preservation and collection efforts, enabling more targeted action, but they can also inform downstream early case assessment (ECA) and review activities, if the right details are gathered. We’ll discuss lines of inquiry in more detail in the next Part: How to Create a Custodian Interview Script.
- Controlling the Narrative – On a purely human level, it is normal for individuals within an organization to feel anxiety about receiving a legal hold notice or becoming involved in one of the organization’s legal matters. This anxiety often leads to gossip and the spread of misinformation. Custodian interviews provide an excellent opportunity to head this tendency off by addressing individuals’ anxiety directly, answering their questions, and helping them understand the context, the process, and its normalcy.
Who Gets Interviewed
The number of individuals to be interviewed is going to vary widely and wildly from organization to organization and from matter to matter. I have worked on matters requiring only a handful of interviews in one location and on matters requiring hundreds of interviews at locations across the country. The number, however, will always be dictated by the same basic goal – to learn about all the relevant materials, and be made up of the same three basic categories of individuals – key custodians, departmental custodians, and representative custodians.
- Key Custodians – Key custodians are the ones that may also appear on your witness, deposition, or affidavit lists. They are the individuals within the organization with a direct connection to the matter and direct knowledge of the events and/or the relevant materials. These custodians almost always possess materials requiring preservation and collection, they often know who else in the organization should be added to the interview list, and their materials are typically the highest priority for collection and review.
- Departmental Custodians – Departmental custodians are those that receive legal hold notices and get added to custodian interview lists because they are the individual responsible for a cache of departmental rather than individual materials. For example, someone from HR might be interviewed about employee files or someone from Sales might be interviewed about customer relationship management records. Sometimes, these take the form of departmental records stored on an enterprise system; sometimes, a department will operate its own hardware or software platform for its materials; and sometimes, a department will oversee an outsourced service that handles them instead.
- Representative Custodians – In larger cases and/or larger organizations, it is common to face project scope decisions about including or excluding large groups of custodians. For example, do all the sales representatives need their personal computers collected, or will their materials just be duplicative of what’s elsewhere? These decisions set large potential costs on one side against large potential risks on the other. Selecting a few representative custodians from such a group for interview, collection, etc. can eliminate the guesswork and inform the decision.
Together, some combination of individuals from these three groups will be who gets interviewed for your legal discovery project.
Upcoming in this Series
In the next part of this short series, Creating a Custodian Interview Script, we will continue our review of custodian interviews by discussing what should be asked.