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3 BEST PRACTICES
CUSTODIAN INTERVIEWS
for eDiscovery
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an interview of a person having administrativecontrol of a document or electronic file in attemptsto locate potentially relevant ESI - commonlyconducted for investigations or discovery purposes
(noun)
custodian interview
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While eDiscovery service providers
stress the importance of consistency -
every case, IT environment, and
custodian is different making it difficult
to leverage templates and repeatable
workflows for the interview process.
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When done properly and thoroughly, custodian interviews
will arm you with proper information to negotiate a
reasonable scope of discovery.
So, how can you make sureyour next custodianinterview is a success?
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When done properly and thoroughly, custodian interviews
will arm you with proper information to negotiate a
reasonable scope of discovery.
So, how can you make sureyour next custodianinterview is a success?
1
FOCUS ON
THE CASE
VERIFY
THE FACTS
2
DOCUMENT
THE PROCESS
3
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Focus on the case01
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example template questions:
What work did you do?
Who did you do it with?
What files did you make or
receive?
What emails did you make or
receive?
What copies did you make then?
What computers did you use?
What software(s) did you use?
While a custodian interviewtemplate is a good starting point,it will have little to do with yourclient or the specifics of the case.
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Template information focuses primarily on stored
information, infrastructure, business systems,
servers, databases and a record retention policy.
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Template information focuses primarily on stored
information, infrastructure, business systems,
servers, databases and a record retention policy.
All of which is crucialinformation to theprocess, so bring along atech if you need help.
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When utilizing a template in the beginningof the process, you must also keep in mindspecifics that are unique to the case, yourclient, and individual custodians.
InterviewTemplate
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When utilizing a template in the beginningof the process, you must also keep in mindspecifics that are unique to the case, yourclient, and individual custodians.
InterviewTemplate
Specific Case
Client
Case
Custodian
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They might be using applications that you haven’t considered.
Once you have the basic information that youneed, take the time to understand howindividuals are communicating in their space.
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1. EMAIL 2. SOCIAL MEDIA
3. CHAT APPLICATIONS 4. STORAGE AND SYNC
Thinking outside the custodian interview box
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1. EMAIL 2. SOCIAL MEDIA
3. CHAT APPLICATIONS 4. STORAGE AND SYNC
Have you asked them aboutpersonal account(s) that theyaccess at work?
What social platforms do theyuse to communicate aboutwork projects?
Besides the traditional stockapplications, what other chatplatforms do they use?
Have you asked about DropBox,Evernote, and Google Drives?What about iTunes or iCloud?
Thinking outside the custodian interview box
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Interviews are used to figure out who did what,when and why and preferably in chronological order.
Ask for words, names and dates
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Having the chronology of the situation will help you
evaluate potential witnesses and the strength of the
client's case.
Ask for words, names and dates
WhoWhat
Where WhyWhen
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Code words, acronyms
and abbreviations that
were used
Nicknames for projects
and people
Naming conventions for
files
Beginning, ending and
critical dates
Ask custodians for details along
the way to help you identify
potentially responsive material
that may have otherwise been
deemed non-responsive.
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Don't find yourself at deposition learning for the firsttime that when you did your interview, your witnesswas talking about their job two jobs ago, in a differentdepartment, in a different office, on a differentcomputer, with different access and IT support.
Ask about changes, history and support
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Where were you working when
all this happened?
Were you using this computer
or did you get a new one since
then?
Were you using this software?
Did you have access to anything
then that you don't use now?
When you need computer
support for access, software or
hardware who did you call?
Who did you call back then?
Ask all questions
pertaining to the history
of the custodian.
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Verify the Facts02
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Interview IT, but verify the factsTake the time to confirm with custodiansthat various IT policies are being followed ‐and if they're not, where that informationcould be located.
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Interview IT, but verify the factsTake the time to confirm with custodiansthat various IT policies are being followed ‐and if they're not, where that informationcould be located.
For example, IT may say that no cloud-based
email systems are used, but an employee sends
information through their Gmail account.
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If you only rely on IT’saccount of where informationis located, there is a greaterchance that you could misspotentially relevant ESI.
Trust
Verify
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In most situations, you need to see at least some of
the data you discuss with your clients to decide
what is important to your case.
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In most situations, you need to see at least some of
the data you discuss with your clients to decide
what is important to your case.
If you’re interviewing someoneand the computer is on, ask tosee some of the emails you arediscussing, folders where thefiles are kept, and specifics aboutdocument management systems.
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Document the Process03
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In order to negotiate a reasonablescope of discovery, you mustdocument the entire process.
As you interview custodians and ITprofessionals, your documentation willhelp build a collection plan.
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For example, let's say during the interview you find in
your notes that 7 of 8 custodians point to the same
folder in the marketing share as the place where they
store their project materials.
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For example, let's say during the interview you find in
your notes that 7 of 8 custodians point to the same
folder in the marketing share as the place where they
store their project materials.
Once the information isverified you can avoidhaving to collectabsolutely everywhere inthe client’s computingenvironment.
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Conclusion04
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In the end, custodian
interviews will arm you with
a discovery plan that will be
shared with adversary and
the court.
custodian interviews should
leave you with:
Valuable information about
the case
Identify potential witnesses
Locate relevant ESI
Ability to negotiate a
proportional scope of ESI
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Along the way, you can manage
the risk associated with the case,
and develop defensibility you
may need to ward off challenges
to preservation and scope.
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So, how can you make sureyour next custodianinterview is a success?
1 2 3
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So, how can you make sureyour next custodianinterview is a success?
1
FOCUS ON
THE CASE
VERIFY
THE FACTS
2
DOCUMENT
THE PROCESS
3
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