Custodial interviews are a key part of discovery. Perhaps more than any other process, the interviews provide opportunities for successful, efficient discovery. However, if mishandled, they are likely to lead to later problems. To put yourself in the best position, make sure you are not making any of these common mistakes:
1. Collecting without in-person interviews
Whenever possible, key custodians should be interviewed in person or by phone. In-person interviews offer many benefits, compared to collecting all data without speaking with custodians. Even surveying them by email is a poor substitute. Most importantly, interviews increase the likelihood that custodians will help you find all relevant information for preservation and collection. To the extent some information might still be missed, the attorney and organization will have a better argument that they acted reasonably by asking the person probing questions, and that the omission was not negligent.
In-person interviews are also essential if you want to precisely cull relevant data from non-relevant data. Through dialogue, the interviewer may establish at a granular level whether certain data sets are entirely relevant, a mixture of relevant and non-relevant, or entirely non-relevant. Search and review strategies can then be developed accordingly.
In addition, in-person interviews about data often yield valuable information related to the merits of the case. Witnesses who are thinking about their records, rather than responding to questions directly related to merits, often reveal new and different information that is useful for merits counsel. To maximize this benefit, merits counsel should ensure interviewers have a good understanding of the case, and encourage interviewers to provide merits counsel with feedback and observations about the custodians.
Of course, in-person interviews are not the right approach for all custodians in all cases. In some cases, the number of custodians may require only interviewing key custodians, while less important custodians simply fill out an electronic survey. In sensitive investigations, data may need to be collected without witness knowledge, in which case interviews should not be used. In many cases, however, speaking with custodians is essential to a sound discovery process.
2. Going in unprepared
A generic custodial interview outline is a good beginning, but it is not sufficient for a proper interview. You need to include information specific to the custodian. When interviewing employees, the company’s IT department should provide information about how and where the custodian’s data is stored. With this information, you will be able to start to speak the company lingo, which helps the custodian understand your questions. For example, a custodian asked whether he keeps data on shared drives may reply “no,” but may respond “yes” when asked whether he keeps data on the “S:” Drive (his company’s shared drive). A distracted custodian may state that she does not use any instant messaging applications, but will recall that she has used ICE Chat if specifically asked.
The more you know about the company’s data going into the interview, the more thorough and efficient your interview will be. Many custodians lack awareness of IT environments and so are not able to articulate well how they store their data. If you already know standard procedures and configurations at the company, you can likely tell whether a custodian’s description is consistent with that expectation without wasting a lot of time.
If available, file directories for the custodian’s data can allow the interviewer to document the precise locations of data that is relevant and non-relevant. Although walking through a file directory during an interview can take some time, it can save huge amounts of document review later because it allows precise culling.
3. Ignoring structured data
Production of structured data sets (fielded data) is required in discovery, but can be overlooked during custodial interviews. Often, custodians know that they access certain types of data through a front end application, but do not know what database is involved or the form of the data files. If you simply ask these custodians whether they use they “structured databases,” they will say no.
Therefore, the interviewer should also ask other questions designed to lead to structured data sets. The best types of questions focus on structured data set inputs and outputs, such as: What reports do you send or receive regularly? What do these reports contain? How are they created? Do you enter data into a system? How do you do your work that is not captured in email, word documents, or spreadsheets?
4. Disregarding new information
The discovery process is iterative, and first plans are rarely perfect. Although the linear progression of discovery is identify/preserve/collect, adjustments will likely need to be made throughout the process. Custodians who were put on hold the first day may turn out to have no relevant information, and new custodians may be identified later.
Interviewers should seek to learn what they don’t know; for example, ask, “Who else would have this relevant information? What would they have?” Counsel should anticipate these changes and be ready to act on new information as they learn it. Newly identified custodians should be put on hold as soon as possible, while any employees unnecessarily put on legal hold earlier in a case should be removed.
5. Throwing out everything you learn at the end of discovery
The information about company data learned during custodial interviews is valuable! It can be used to check employee compliance with information governance policies, update company data maps, provide insight on how employees are using existing technology in the company, and identify points of data risk. For example, interviews may reveal that employees are storing data on unauthorized devices, that a department has added new applications of which IT was not aware, that employees are struggling to do their jobs using outdated technology, and that the company has a large storage room of hardware that has never been cleaned out. These findings could be easily overlooked and eventually thrown away because they do not relate to the litigation at hand, but are actually very useful to the company. Therefore, the custodial interview process should include summarizing these types of issues.