5 Vital Components of Every Custodian Interview
David Meadows, PMP, Managing Director – Discovery Consulting, Kroll Ontrack
Dave Canfield, EJD, Managing Consultant – Discovery Consulting, Kroll Ontrack
David W. Meadows, PMP
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Managing Director – Discovery Consulting,
Kroll Ontrack
Experience with information planning, data
preservation, data collection, data
processing, and complex data analysis
Broad technology background covering
enterprise networking, software design and
development, and system implementations
Previous work: electronic discovery
consulting director for an international
consulting firm, senior manager of
information systems for a fund
management company, project manager
developing enterprise applications and
head of IT for a Chicago law firm
Dave Canfield, EJD
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Managing Consultant – Discovery
Consulting, Kroll Ontrack
Assists clients in the creation of discovery,
data collection, case management,
systematic processes, and documentation
to support repeatable, efficient, and reliable
e-discovery procedures
Frequent expert witness for complicated IT
systems
Senior advisor in e-discovery for a global
pharmaceutical company
20+ years experience in IT management
and senior management
Discussion Overview
 Introduction to Custodian Interviews
» 1. Location of Relevant Documents
» 2. Privilege Communication
» 3. Compliance with Policies
» 4. Other Important Custodians
» 5. Background Data
 Other Considerations
 Conclusion
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Introduction
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As every good lawyer knows…
Electronic
information
must be
preserved
whenever
litigation is
reasonably
anticipated
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Litigation is anticipated—now what?
 Initiate a litigation hold
 Critical aspect of a successful litigation hold:
custodian interviews
 Information gathered during custodian interviews:
» Sets the stage for the entire e-discovery process across the EDRM
» Helps develop a detailed data map
» Aids in preparation for 30(b)(6) depositions
 Remember: document all custodian interviews
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5 Components of a Custodian Interview
» 1. Location of Relevant Documents
» 2. Privilege Communication
» 3. Compliance with Policies
» 4. Other Important Custodians
» 5. Background Data
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#1: Location of Relevant Documents
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Location of Relevant Documents
 Ask specific questions and walk through a
comprehensive list of potential data sources, including:
» Business and personal:
E-mail accounts
Computers, iPods, flash drives
Phone calls, voicemail, Skype
Databases, cloud services
Network servers, structured data systems
Social media sites
Text messages, instant messages
Document management tools
» Rule of thumb: anything with memory
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Location of Relevant Documents
 Beware! Custodians
will often identify only
some of the locations
where relevant
documents could be
stored
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Location of Relevant Documents
 Do not forget the paper!
» Ask where paper documents are stored and note the locations
» File cabinet, briefcase at home, box in trunk of car, etc.
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Location of Relevant Documents
 Case Study:
» In Coleman (Parent) Holdings v. Morgan Stanley, a 2005
Florida case, Morgan Stanley was unaware of where it
stored its electronic data, and was thus sanctioned for
discovery abuses. A jury awarded the plaintiff $1.4 billion in
compensatory and punitive damages.
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#2 Privilege Communication
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Privilege Communication
1. Inquire about
whether the
custodian
communicated
with attorneys in
the matter
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2. Create list of
each attorney’s
name and
contact
information
3. Identify and
isolate
potentially
privileged
documents
Privilege Communication
 Benefits of separating privileged documents
at the custodian interview stage:
» Helps create an appropriate list of search terms to ensure
privileged documents are not overlooked
» Increases efficiency by saving time and money – teams can skip
review of these documents
» Improves overall defensibility of litigation hold when privilege is
meticulously addressed at the custodian interview stage
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#3 Compliance with Policies
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Compliance with Policies
 Why is compliance more important now than ever in
the e-discovery context?
» According to IDC:
Over 99% of all
documents are
now created and
stored
electronically
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About 60 billion
e-mails are
created and
sent each day
Compliance with Policies: Document Retention
 Ask whether the custodian is aware of the company’s
document retention policy—especially when it comes to
electronic documents
 Note: companies are responsible for creating and
instituting their own document retention policies
specific to regulations for their specific company’s
industry
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Compliance with Policies: Legal Hold
 Parties that fail to initiate a defensible legal hold face
spoliation sanctions
 A defensible legal hold starts with the custodian!
 Case study:
» In U.S. v. Philip Morris, the court
determined that Philip Morris
destroyed e-mails on a monthly,
system-wide basis for two months
after a preservation order was
issued. Sanctions imposed:
$2,750,000, plus a $250,000 fine
to each of the eleven corporate
managers who failed to comply
with the legal hold.
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Compliance with Policies: Legal Hold
 Recommendations
» Give the custodian another copy of the latest litigation hold notice
» Remind the custodian of his/her preservation obligation
» Provide the custodian with basic information about the case
» Ask with whom (family, attorneys, co-workers, media, etc.) the custodian
has discussed the matter
» Remind the custodian that the matter is sensitive and that it should not be
discussed outside the company
» Answer any questions or direct the custodian to the appropriate resource
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#4 Other Important Custodians
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Other Important Custodians
“Who else knows about this matter?”
This question is a good start, but there is
more to finding other custodians…
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Other Important Custodians
 Depending on the nature of the matter, cover:
» Outside vendors
» Consultants
» Contractors
» PR professionals
» Etc.
 Helps identify who should
receive notice or third party
subpoenas in some cases
 Do not forget departed
custodians who were present
during the relevant period
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#5 Background Data
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Background Data
Provide to the custodian:
» Basic case information
» Client’s information
Obtain from the custodian:
» Name (and any previous names)
» Employment history for the relevant time period
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Role
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Tenure
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Location
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Contact information
Other Considerations When Conducting
Custodian Interviews
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Other Considerations
 It is not just the where—it is also the how
» Ask the custodian how they organize their documents
» Determine whether there is a reliable organization structure and
method; if not, you may have to arrange for organization
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Other Considerations
 Keep connected
» Tell the custodian who to call with questions or concerns,
especially with regard to compliance issues
» Remind the custodian to call counsel if she/he remembers
anything later
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Other Considerations
 Collection
» Once potential sources are identified, it is recommended to
immediately do the collection, both paper and electronic, if
possible
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Q&A
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