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BabbittBy Whitney Babbitt, Proteus Discovery Group LLC
ESI Bytes is a series produced by the IndyBar’s newest section, the E-Discovery, Information Governance & Cybersecurity Section. Want to learn even more from the section? Get additional resources and information at indybar.org/edata, and join the group at indybar.org/myprofile!
The term “Information Governance” (or “iGovernance” as it’s starting to appear) can conjure up images of server rooms, miles of fiber optic cables and all things regulated by binary code. But the truth is, keeping your digital house in order starts and ends with the human touch. A company’s documents and data are managed and manipulated by its personnel. Custodian interviews are a crucial part of tracking data and implementing a healthy information governance strategy, and are key to managing the risks and costs of any real or potential litigation.
Because each case is different, companies cannot blast boilerplate requests to an IT department and expect to catch all the data needed to effectively ready themselves for litigation or investigation. Identifying the proper custodians and conducting thorough and focused live interviews are key to both compliance and cost management.
So, who are we talking about? A custodian is anyone who creates, edits or manages potentially relevant data (whether electronic or otherwise). It’s likely that you will have a general idea of who might have custody of potentially relevant data based on the initial elements and facts of the case of investigation. After collecting those names and analyzing their potential importance to the case, IT personnel, document retention specialists, risk managers and case administrators are the next best source of information to understand where data resides in a company. In addition to those sources, you may need to look at other departments, offices, or companies for potential custodians. The interview is all about discovering what you don’t know, so don’t be afraid to ask who else you should be interviewing.
Before conducting a custodian interview, anyone managing an eDiscovery project should begin setting the parameters of the search. Talk with attorneys or other risk managers to determine who the key players are and what date ranges are of interest for the investigation. From there, identify what data is definitely within the scope of relevance, what is on the border and what is certainly not relevant. As interviews and document reviews are conducted, these buckets will shift, but working through the generalities from the onset will clarify the search and help to control costs.
When it comes to sitting down with custodians, the goal is to identify what bodies of data are relevant to your case and to understand how, when, and by whom that information was manipulated. Start broad and narrow as you go. Interview templates can be an effective tool as long as they don’t become the end-all be-all. While the facts, company and custodians are unique from case to case, any eDiscovery project requires the answers to specific questions regarding business systems, document storage and retention, IT infrastructure and workflow. Drill down on how data is stored (locally or in the cloud?), how it is used (what software is implemented? How many devices do custodians access ESI from?) and how it is governed (Is there a document retention policy? Is it enforced?).
Once you’ve gathered the logistical information from your custodians, take the time to understand how they work and communicate. Not only will this build the relationship (you never know when you’ll need help down the line), but it may also shed light on avenues or applications you haven’t considered. Think about social media platforms, chat applications, or personal devices that may house relevant data. Are there former employees that you may need to talk to or make sure their data has been retained? The human touch of the custodian interview can unveil these paths to you early in the process.
And while you’re at it, ask “stupid” questions. Just because a custodian frequently uses an acronym, that doesn’t mean the acronym is used uniformly across the company. Don’t let your pride prevent you from clearly understanding what your custodian is saying. In a similar vein, it’s important that you verify the information you collect through custodian interviews. An IT department employee may swear that document retention protocols are strictly followed, but without fail some employees find a way around the policy and hoard documents that must be collected. Making blind assumptions about data storage and maintenance could put you or your client at risk of missing potentially relevant data.
How does spending all this time in personal interviews save money in the end? When it comes to eDiscovery, it’s always easier to get ahead of an issue before it turns into a full-blown crisis. All the technology and automated processes in the world are no replacement for having human conversations with data custodians. Speaking to the people involved will help narrow the relevance scope early in the process, identify redundancies, shed light on data pitfalls, and avoid missteps when deadlines are fast approaching.
Whitney Babbitt is the Operations Manager for Proteus Discovery Group and a Certified Registered Paralegal. The opinions expressed are those of the author.
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