When one thinks of data collections for eDiscovery purposes, the imagination often conjures up images of computer forensics technicians using special tech gadgets to image hard drives, or custodians using web applications to legally defensibly collect targeted data with several BIA legal technology options.
But, there’s something else that should come to mind first: Custodian Questionnaires. What does that have to do with data collections, you ask? Everything. That is, if you want to do it right – and cost effectively.
Custodian Questionnaires are nothing new, the concept having been around for many, many decades. In the past, Custodian Questionnaires were completed either during individual in-person custodian interviews or by sending around a paper form for custodians to complete, with an unlucky paralegal or associate often tasked with interpreting handwriting and compiling the results.
But that’s (hopefully) a thing of the past. Most legal hold software now have integrated Custodian Questionnaire template features that allow you to quickly and easily create and send questionnaires to your custodians via email and report on the results with a click of a button.
A note of caution here … some companies use “free” online survey software to complete this task. Before doing so, you should read the fine print, as “free” generally isn’t free. Often in return for “free” use of an online survey engine, you’re forced to give up any expectation of privacy, and the company providing that “free” service may be able to use your questions – and your custodians’ responses – as they see fit).
So, why are Custodian Questionnaires so important – nay, critical – to effective and cost-efficient data collections? Because they help you target those efforts and ensure that you don’t miss critical data sources. With a proper Custodian Questionnaire, you can save time, effort and treasure – not to mention help avoid potential sanctions.
As we mentioned in our last post, especially in light of the upcoming changes to the Federal Rules of Civil Procedure, the simple fact is that the defensibility of your entire eDiscovery process will be decided nearly entirely by the first few steps you take – that is, how you identify, collect and preserve critical and potentially responsive information. Everything else after that can be fixed, but deficient collections more often than not result in lost data, which all too often leads directly to sanctions.
With a well-prepared and thought-out Custodian Questionnaire, you can not only ensure that you are discovering everywhere that potentially relevant data lives, but just as importantly, you can show clear and convincing proof that you have taken your data preservation obligations seriously, and have put in place a well-thought-out plan for identifying, collecting and preserving information. Indeed, how better to prove that your process was defensible than to show that you polled each and every custodian, specifically asking them to identify relevant data resources, and then worked those responses into your overall eDiscovery plan?
What’s more, effective use of Custodian Questionnaires can help make the entire process more efficient. Gathering information directly from custodians prior to the full onset of discovery will help you target the right data – and the right people. The more you target your data collections, and the earlier you can eliminate any individuals initially identified as custodians but who have no relevant data, the more you will save in costs.
The single most effective way to control your eDiscovery costs is to control the number of custodians and the amount of data collected. Custodian Questionnaires help you gather the information needed to accomplish both in a defensible manner.
And Custodian Questionnaires aren’t just for eDiscovery purposes either. The process can be used to gather important facts, generate timelines and really dig into the information locked away in your custodians’ memories. And you shouldn’t think of Custodian Questionnaires as a one-time thing, either. There’s nothing stopping you from issuing multiple questionnaires over time as the case develops.
Custodian Questionnaires should be an integral part of your eDiscovery – really your litigation – strategy. In short, the use of questionnaires gives you the ability to unlock an enormous trove of information, quickly and easily, allowing you to determine the primary actors in a matter and develop a much better overall picture of the facts surrounding a case.
If you’ve used Custodian Questionnaires before, but only for eDiscovery purposes, then you’re missing out on significant benefits. And don’t worry, all those communications and responses are protected by Attorney-Client and Attorney Work Product privileges.
In the end, one of the oldest tools in the litigator’s toolbox, the Custodian Questionnaire, can be the answer to helping to ensure that your entire eDiscovery process is found to be defensible – not to mention cost-effective.