by Kelly Twigger, Esq., Principal, ESI Attorneys
Identifying many more custodians for a matter than are truly necessary is a challenge I am constantly addressing with clients. Interestingly, I usually see clients go one way or the other – either identifying entire departments for a legal hold (instead of the four to five individuals who touched a project), or only one or two people (vs. all those necessary) – rather than conducting interviews and truly understanding who really should be a custodian.
Why does having the true list of custodians matter from the start? Two reasons — reducing risk and saving money.
Early Witness Interviews: Do the Legwork
So, how does early identification of custodians reduce risk and save money?
Preservation is a careful balance of keeping what you need to keep while not keeping everything, and allowing the company to continue to conduct business while not bankrupting it with the cost of e-discovery. Over-preservation – keeping more information for more custodians than you need – ultimately costs more. Does the executive’s assistant really need to be a custodian, or are all the emails she sends and receives on his behalf in his email? Does the entire marketing department need to be on hold, or are there 5–10 people who worked on a project and maintained a SharePoint site where data is kept? Over-preservation is the “CYA” of e-discovery, but it is not only unnecessary – it costs you more in the long run. More data = more $$.
Doing the legwork early to figure out what role witnesses really played in a matter is the key to learning. For example, you should try to find out:
- What kinds of ESI witnesses have created, received or stored
- Where the ESI might be located
- Who a witness may have communicated with internally or externally and by what methods (email, IM, text, etc.)
- The current status of the person’s mobile device(s) used during the relevant time period
Once you know those details, you can begin to craft a preservation strategy, get sign-off from the other side or the judge (yes, you read that right, cooperation is key to reducing risk and saving money) and preserve and collect only the ESI needed for the matter. You can then feel confident that you have met your obligations and that the business can continue to move forward. The more you learn, the more you save. A more reasonable thought process (and the more agreement you have from the other side) equals less risk. Remember, the law requires you to make “reasonable efforts”, not scorch the earth.
Encourage e-Discovery Counsel to Sit in on Early Interviews
Early witness interviews will also provide a basis for discussion with IT to determine what still exists. If the conversation with IT happens before the discussion with the witness – or litigation technology support talks to IT, but the litigators interview the witnesses and there is no exchange of information along the way – you’ll miss out on what you need to know. The only real way to facilitate the process is to have a knowledgeable attorney (or sometimes a paralegal under the supervision of an attorney) familiar with both litigation strategy and technology conduct witness interviews with an ear towards e-discovery concerns.
The best approach is to have your e-discovery counsel sit in on witness interviews with outside counsel at the beginning of the matter. That will allow for issue, witness and ESI identification early on. For example, a litigator who is knowledgeable about e-discovery, but focused on the merits of the case rather than e-discovery, may ask a witness who they communicated with from the other side, but will likely not ask what email addresses the other party used. That can be critical information depending on the type of technology used to cull, process and review the data. Similarly, if a party uses a Gmail address with a nickname rather than the full name that is likely to be used as a search term, that difference might create problems later. (The multitude of problems with search terms is another whole article and the subject of many in e-discovery land.) In a recent case, a key witness used an email address from a different domain not identified early on; when that fact finally came to light, it resulted in a need to research, collect and produce more data.
e-Discovery attorneys are more likely to think about the relationships and types of ESI used to communicate as well as the data sources (mobile devices, laptops, home computers, etc.) that need to be considered. All of that discussion is best had in conjunction with the traditional witness interview for two reasons:
- It provides e-discovery counsel with the context of the case to think through what other sources of ESI might need to be preserved within the organization other than those the witness mentions.
- It also gives litigation counsel background on what sources, witnesses and types of ESI will be key, so they have their ears open when an issue may arise in a setting where e-discovery counsel is not present.
Narrowing custodians = targeted preservation = less risk, less $$. What more could you want?