Custodian interviews are conducted with individuals from an organization that have been identified as maintaining or having direct access to files and programs that may be relevant to a lawsuit. Conducting interviews early in the litigation process can prove critical to the case for the purposes of issuing litigation holds, preserving data, identifying other potential custodians and data collection. The interview process is a fact-finding mission to gather information that will ready the case for the discovery phase.
Why Interview Custodians
Cooperation - Once a lawsuit is reasonably anticipated, members of the organization may become anxious about their involvement, particularly after receiving a litigation hold notice for their data. Conducting interviews provides a controlled environment where the custodian can ask questions, provide information, confirm their understanding and discuss the legal process, all of which can ease their anxiety and elicit truthful and accurate responses.
Planning for Discovery - Starting early conversations with custodians allows interviewers and counsel to develop a plan for what data will be relevant, where the data is stored, and who creates and/or maintains the data that will be responsive to the case. A streamlined interview process can narrow the scope of data to be collected and reviewed by attorneys, decrease time spent searching for data to collect by having all locations and login credentials recorded in the custodian interview form, and provide a defensible method for tracking where and when data was collected and by whom prior to exchanging discovery.
Preservation - Custodians have direct knowledge and involvement with the facts of the litigation. Since custodians maintain materials related to issues in the case, all related data must be preserved and collected. Early notification to custodians and communication of a litigation hold can be imperative in avoiding inadvertent spoliation of data, which can result in costly sanctions from the court. Once litigation is reasonably anticipated, a litigation hold should be provided to each custodian requiring their understanding and cooperation with the preservation of all data that may relate to a legal action involving the organization. This should be discussed and confirmed at the time of the interview.
Prior to conducting the interviews, the organization, counsel and the IT and/or eDiscovery specialist should confer to prepare a list of individuals to interview.
Key Custodians - Key custodians are individuals who may be called as a witness due to their direct involvement in and knowledge of the events related to the case. These custodians should receive litigation hold notices early to ensure preservation of data, and should be asked about others within the organization who may also need to be interviewed.
Departmental Custodians - These custodians are responsible for materials specific to a department within the organization, and have direct access to materials and systems which hold relevant information. This can include employee files, customer records, invoices and other related file materials, as well as access to the storage systems, databases, software, contractors or programs that manage the data.
Representative Custodians - Large organizations may identify one or more custodians for data collection to act as a representative sampling of a department or large group within the organization, as opposed to interviewing and collecting data from all members of the group/department. This can minimize the time and costs associated with interview and collection efforts while still providing representative data for the case.
Preparing for the Interviews
The organization, counsel and the IT and/or eDiscovery specialist should confer to prepare a list of questions to be asked during the custodian interviews. The questions should focus on identifying:
Who is the custodian and which department do they belong to?
What is their role within the organization?
How long have they been with the organization, and where were they before?
What are their areas of responsibility?
What kind of related materials do they maintain for the organization?
What hardware and software are used to perform their work?
Where do they store their files?
Are the Organization’s usage policies being followed?
Who do they regularly communicate with as a part of their work for the organization?
Do they communicate with other key custodians in the case?
Who else should be interviewed?
Conducting the Interviews
The method for interviewing the custodians can be a conversational, formal or survey approach. Regardless of which method is used to conduct the interview, it is recommended that interviewers use a fillable form to record responses during the interview (see sample Custodian Interview Form attached below).
Conversational Approach - A conversational approach can put interviewees at ease, allowing them to ask questions and provide relevant information as part of a one-on-one or small group discussion; however, this method may be too time-consuming for large organizations with a large number of custodians.
Formal Approach - For large organizations with a large number of custodian interviews to perform, a formal approach will have the interviewer following a standardized interview process across all custodians. This approach allows for multiple interviewers to conduct interviews consistently, efficiently and in a highly defensible manner.
Survey Approach - For large groups of custodians, an organization may choose to send each custodian a fillable form to self-report their responses and return to the interviewers (either electronically or by hard copy). This decreases the time and involvement required by the team of interviewers; however, this approach also eliminates the opportunity to ask questions not included on the interview form, and does not allow the interviewers to develop any direct impressions of the custodians.
If you are interested in having Professional Services conduct the custodian interviews in your case, please reach out to ProfessionalServices@lexbe.com to schedule a time to discuss and confirm the desired interview method. Prior to that conference, please provide a completed contact list (see Custodian Contact List).
This service is provided at the $150/hr Professional Service rate. You can reach out to your eDiscovery Solutions Director for a formal cost estimate.