By Barry Schwartz, Esq.
Conducting Interviews for Data Identification
Custodian interviews, as recently reported in Legaltech News, are an important and valuable resource, particularly useful to ferret out additional locations of electronically stored information (ESI). See the case cited in the article, Small v. University Medical Center (2:13-cv-0298-APG-PAL, July 13, 2018). The court, in its decision, enumerated many ESI deficiencies. As Philip Favro noted in the article, the court observed that the preservation deficiencies were due “in large part from its [defendant’s] failure to conduct effective interviews.”
At BIA, we realize that custodian interviews are a key part of the process of data identification, but they, in and of themselves, are done at a huge cost, both in client personnel time and in the time and costs incurred by counsel performing them.
Using Custodian Questionnaires
There is an option that is often overlooked – using well thought-out custodian questionnaires (CQ). BIA has long proposed the use of CQs to aid counsel at the early stages of matters to winnow down the broad custodian list to those who have the most involvement or are closest to the matter.
When a litigation hold is issued, it is typical and accepted practice to cast a wide net and place persons on hold who may have been tangentially involved in a matter. Then, as the case progresses, the individuals determined to not be involved may be released or may be left on hold but without collecting to preserve their ESI.
This is an ideal use of a CQ: to flush out those custodians who are more keenly aware and involved in a matter with electronic efficiency. A CQ can be distributed to any persons on hold and can contain qualifying questions to determine which custodians are the key custodians.
The Advantage of Custodian Questionnaires
A well-crafted CQ can inquire about where ESI is located, including the typical locations of laptop, server, paper documents, etc., as well as less typical but ever more common ones such as social media, webmail, cloud storage, SaaS applications and the like. One of BIA client’s CQs identified an obscure database that needed to be collected. Others, on multiple occasions, have broadened the custodian base by identifying other people within the organization with knowledge of and involvement in the matter at hand who should be added as custodians.
Yes, what is described here can be accomplished with interviews, but there’s a significant cost — not only financially, but in the time it takes to schedule, conduct the various interviews and analyze the responses. A custodian questionnaire can be sent to all custodians at once and be quickly completed and reported upon. It’s also easy to review reports in a way that allows you to compare and contrast answers by custodians to the same questions. This will help inform and confirm information, as well as identify issues and inconsistencies.
To further augment discovery efforts, one can also create and issue differentiated questionnaires depending on the custodian’s role within the organization. Senior executives might receive one set of questions, the engineering team another and the marketing team yet a third. Not only can you differentiate, but supplemental sets of questions can also be prepared that seek more detailed responses.
If, as BIA offers, an automated distribution system is utilized for sending questionnaires and recording responses, the time to analyze the returned information is expedited and efficient. As stated, a single report for each questionnaire version accumulates the answers for each response, facilitating understanding, analysis, inconsistencies and consistencies across all the responses.
Coupling well thought-out questionnaires with live custodian interviews allows counsel to gain more information more quickly. The CQ responses can inform counsel which areas to emphasize during the live interview process.
Want an example? Check out this sample custodian questionnaire.
Interested in learning more? Contact our advisory team.