A Systematic Approach to Custodian Interviews

Electronically stored information is ephemeral by nature, so the duty to preserve makes the identification of potentially relevant ESI a task of primary urgency in all forms of litigation. Interviews with employees who have custody of information are an essential step in meeting preservation and discovery obligations. Legal teams must approach these interviews in a systematic way that takes into account both the intrinsic value and limitations of custodial knowledge.

The best method of carrying out this task is direct communication, in order to identify and understand the parameters of potentially responsive ESI in the custodian’s control, as well as to identify other sources. To accomplish both purposes, the custodial interview begins with questions about the custodian’s background, exploring the custodian’s habits with regard to generating and storing ESI, along with details about the types of ESI the custodian currently uses or has historically dealt with. Attorneys should use the interview to derive keywords and important time lines.

Working with an organization’s IT department is essential throughout the interview process. This provides the attorneys with an understanding of the company’s data infrastructure, information flows and data retention policies. It also enables attorneys to alert IT whenever IT needs to step in to prevent the loss of ESI identified as potentially relevant during a custodian interview.

Attorneys must explain the concept of “privilege” to custodians. They can then can flag potentially privileged information for review. Attorneys make the final determination.