With our Custodian Questionnaire template, gather all the facts you don’t yet know you need.
A Custodian Questionnaire template that is comprehensive but also customizable will pay dividends from the very start of your information-gathering quest. Custodian Questionnaires (CQs) enable companies and litigation counsel to collect information about a matter from all custodians quickly, efficiently, and at a very low cost. With a secure online solution like our TotalDiscovery offering, that data is collected into a centralized database that allows easy tracking, comprehensive reporting, comparisons across custodians, and more.
Typically, counsel will interview custodians at the outset of a matter to aid in their fact-gathering, strategy discussions, and overall case preparations. While such interviews can be very useful, it’s much more powerful and efficient to start with CQs first, and a well-constructed Custodian Questionnaire template can save you many, many hours.
When utilized properly, not only will CQs improve your fact-gathering processes, but they can reduce the number of necessary custodian interviews (and the associated costs), allowing counsel to focus on truly key custodians and more important matters. CQs can also help counsel better prepare for custodian interviews and improve the overall fact-gathering process.
Some Important Reminders
1. Location Is Not Everything
Please don’t think that CQs are limited to asking custodians where relevant data may reside. Data location is merely one in a long list of items we include in our Custodian Questionnaire template. If you’re only asking custodians where data resides, you are missing out on one of the most valuable functions of Custodian Questionnaires.
Too many CQ-issuers focus solely on that one use, but CQs, when properly utilized, are so much more useful and valuable than that! From asking custodians who else inside or outside the organization might be involved in a particular dispute or have relevant information, to asking them fact questions about the dispute itself or their involvement in key activities, CQs can be leveraged to gain an incredible amount of intelligence from custodians both inside and outside your organization – all in a highly organized and efficient manner.
2. It’s All Covered
Not to worry: Custodian Questionnaires, when conducted properly, are covered by attorney-client and/or attorney work product privileges, so they are just as safe and secure as the custodian interviews themselves.
3. You Can Always Go Back For More
Depending on the nature of the matter, client circumstances, or overall progress of the matter itself, it can be very useful to issue multiple, different CQs—and at different times throughout the litigation. For example, you might create one CQ tailored to custodians on the marketing team, while the engineering team would get a different CQ.
As the case develops, you might have a whole new set of questions you’d like to ask. When that happens, returning to your trusty Custodian Questionnaire template makes it easy to start all over again. The point is: CQs are incredibly useful fact-gathering tools that can be used at any time over the course of a litigation. It doesn’t have to be a one-time event.
Helpful Guidelines for Building Your Custodian Questionnaire Template
BIA’s Experts assist many clients in drafting effective Custodian Questionnaires or building custom Custodian Questionnaire templates unique to the company or firm. Here are some general tips we’ve collected over the years:
1. Intros Matter, So Intro Your Matter
Before you get to the nuts and bolts of a questionnaire, it’s important to provide your CQ recipients with a meaningful introduction and thorough instructions that will motivate them to provide the types of responses you desire. Custodians will generally provide better answers and more meaningful content if they have some understanding of the scope and need.
In the CQ’s preamble, you should include the following:
- A brief statement describing the matter itself, so the custodian has the proper context
- In laymen terms, define essential words, including “custodian” and “document” at the very least, and any other terms that may be important to understanding and completing the CQ properly and effectively.
- The name and contact information for the person(s) the custodian can contact with any questions or concerns about the process or the individual questions asked in the CQ.
2. May The Source Be With You
At minimum, your CQ should include the following to help identify sources of potentially relevant documents and data:
- Even if it’s otherwise available, ask the Custodian to confirm their name, office location or address, title, direct dial phone, cell phone and the like, just to ensure counsel has the most recent information (someone may have recently been promoted, transferred or married, for example, and corporate directories are notorious for being outdated on such changes).
- Ask where the custodian stores paper documents, as documents can be printed and perhaps relevant annotations added. (See our Custodian Questionnaire template for types of locations to inquire about.)
- Of course, ask custodians where they store their electronic files and data, including what mobile, tablet, smartphone, or online apps they may use. Also, ask them about collaboration tools (like Slack or MS Teams). This is an ever-broadening category, and even if the custodian was recently questioned on these topics, it’s possible that locations may have expanded over time. Be as comprehensive as you can in your question options. Allow for an “other” category for the locations you did not think about.
- Ask custodians where their calendar is, and if there is more than one source, as this can be an important area of discovery. It is often overlooked in legal matters, but many times it is incredibly useful to know, for example, who was invited to or attended a meeting or call.
- Ask custodians about both their work and private social media usage. And don’t just ask for specific sites—make sure to keep it open-ended, as new sites routinely arise. Social media is a valid area of inquiry given the proliferation of sites and the younger population that is actively engaged with such use. Hence, asking whether a custodian discussed the matter at hand on social media can generate valuable information. Ask specifically which sites they utilize as well as when and what was said. (See the example questions in our Custodian Questionnaire template.)
3. Can You Be More Specific?
It’s important that you inquire not just about general topics, but also that you focus on specifics. And it doesn’t have to be one or the other – you can ask the broader topics and then dive into more detailed questions. For example, you could address:
- Where does the custodian store financial documents discussing revenue for a certain product or business, or reports reflecting changes in revenue resulting from a particular event?
- For cases involving medical devices, pharmaceuticals, or other intellectual property development areas, where does the custodian keep their laboratory notebooks, development records, invention disclosures, research notes and other specific record types?
- How did the custodian communicate with their team as opposed to those outside their team or outside the organization? (This could help you identify not just useful patterns, but also systems that may need to be collected or preserved.)
- Patent cases typically require identification of specific document types including the patent filings and drafts as well as competitive analysis.
- Ask other pertinent questions specific to the matter at hand, many of which can be sourced from the complaint, subpoena, answer, or requests for production of documents as well as from other Custodian Questionnaires or custodian interviews.
4. Step Up Your Wrap-Up
Make sure to include some final, broader questions, as well as general wrap-up and catch-all questions that give custodians the opportunity to provide more free-form answers. You can’t anticipate every question you’ll need, and the responses are protected by privilege, so there’s really no reason not to cast a wide net. Here are some ideas:
- Ask the custodian if there is there anyone else inside or outside of the organization that may have information relevant to the matter. You could even offer suggestions to help the custodians think broadly, such as suggesting assistants, other team members, etc. Of course, it should ask for the names and contact information for those individuals too.
- Ask the custodian if they have any other information that they believe would be important in the identification and collection of documents.
- Ask the custodian if they know of any other computer systems, databases, old legacy systems, archived paper records, or any other such potential sources no longer actively used that might have information relevant to the matter.
- Do they know of any events, facts, or other information of any kind that they think might be relevant to the matter?
- Do they have any other concerns that the company should know about?
Custodian Questionnaires are surprisingly powerful tools when used properly, so you should make them a standard, highly utilized part of your litigation toolbox.
At any stage, BIA’s experts are ready to help, and that help is bolstered by our 20 years of experience in the eDiscovery industry. Whether it’s helping you issue or respond to a litigation hold, navigate the CQ process from start to finish, or develop your company’s own Custodian Questionnaire template to use going forward, we’ve got both the legal and technical expertise, and we’ve got your back.
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