Talk Discovery to Me: How to Discuss eDiscovery Obligations With Data Custodians

Talk Discovery to Me: How to Discuss eDiscovery Obligations With Data Custodians

The custodian interview provides an essential foundation for a defensible eDiscovery process. Not only can it help you identify the universe of critical facts about the case and potentially relevant information, but an effective interview can also allow you to narrow down your search for documents and help you develop a strategic, proportionate plan for collecting and reviewing documents.

Here are five tips that will help you gather the information you need.

1. Prepare for the custodian interview.

Thorough interviews require thorough preparation. Interviewers should not only understand the case but also appreciate the responsibilities of the custodian, the role they played in the matter, and the general timeline of the case. Talk to IT before the interview so you walk in with an understanding of how the custodian might store data, but be prepared to discuss sources outside what you’ve anticipated.  

2. Ask custodians a range of open-ended and follow-up questions.

No two interviews will be alike. While you should have a general checklist of questions to follow, don’t let your list dictate the course of the interview. Ask follow-up questions as needed to clarify the custodian’s answers. Be sure that your questions are open-ended, giving the custodian a chance to share their thoughts rather than suggesting the answer in the course of your question.

3. Avoid questions that are too technical.

Ask a custodian outside the IT department about structured and unstructured data, and they’re likely to have no idea what you’re talking about. But if you ask them about the types of documents they create and receive and what types of data they handle, that will start a more productive conversation. Frame your questions using specific yet familiar terms, such as word documents, spreadsheets, email (both business and personal), social media, chat applications, text messages, and the like.

4. Meet with the custodian in person.

The most fruitful custodian interviews occur face to face, with the phone as a backup option. You’ll establish a better rapport with the custodian, which may lead to more thoughtful, complete answers. In a large matter or where custodians are dispersed across a wide geography, it may not be practical to meet personally with every custodian, but having a conversation with at least the key custodians enables you to explore questions more deeply than an online questionnaire or a series of questions over email. An online survey misses the opportunity to ask follow-up questions and probe into critical issues about both the merits of the case and the data to be collected.

5. Document your process.

Keep track of your conversations. They may be useful for a variety of reasons: so you can follow up on an issue later in this case, establish relationships between custodians, and build a defensible process that shows that your efforts to preserve and collect data were reasonable.

For more tips on how to improve your data custodian interviews and how to structure your eDiscovery processes, get in touch.

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