E-Discovery & Legal Ethics – What to Do About It Part 3: Identification of ESI Custodians

This the third in a series of articles examining issues raised in recent legal ethics opinions, such as Opinion CAL 2015-193, issued by the State Bar of California, addressing an attorney’s duty of competence as it relates to e-discovery and electronically stored information (ESI).

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In short, the California opinion states that attorneys handling cases with e-discovery issues must either: 1) acquire sufficient learning and skill before handing matters involving e-discovery; 2) associate with or consult with technical consultants or competent counsel, or 3) decline the representation if e-discovery issues are implicated.

The opinion states that lawyers with cases involving e-discovery must be able to handle certain e-discovery tasks or bring in co-counsel or e-discovery consultants to assist. The tasks, which are discussed in this series of articles, are:

• initially assess e-discovery needs and issues, if any, and analyze and understand a client’s ESI systems and storage;
• direct the implementation of appropriate ESI preservation procedures and advise the client on available options for collection and preservation of ESI;
• identify custodians of potentially relevant ESI;
• engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• collect responsive ESI in a manner that preserves the integrity of that ESI;
• perform data searches; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.

This article addresses the third task, identification of data custodians.

With Client’s Help, Identify Potential Witnesses Possessing Relevant ESI and Documents

One of the first tasks attorneys must tackle in electronic discovery is assessing the nature and extent of their client’s ESI. To do that, lawyers must (with the help of their clients) identify witnesses (custodians) possessing information and knowledge about the legal matter.

Identification of ESI custodians is important because it is through them that attorneys will learn substantive information about the case and it will also inform decisions about ESI preservation and collection. Gathering information from custodians is often accomplished through custodian interviews or questionnaires.

The heart of ESI custodian questionnaires and interviews is really just the 5 Ws (and 1 H). The who, what, when where, why and how.

Who?

This is really a two part question. First, lawyers must identify likely ESI custodians, their roles, and determine who should be interviewed or respond to an ESI questionnaire. Those interviewed or responding to questionnaires are most often the key witnesses to a case, but also can be departmental representatives and IT personnel.

There is also a second “who” question: Who else? The custodians should also be asked who else possesses electronically stored information and documents related to the legal matter and who else has knowledge about it.

What?

This question is an admittedly obvious one. What does the custodian know about the legal matter and what documents and ESI do they possess?

When?

The duty to preserve relevant information is triggered when litigation is “reasonably anticipated” and identification of data custodians is one of the first steps that must be taken to preserve evidence. If it is unknown who possesses evidence relevant to a legal dispute, it is difficult to preserve it.

In general, it is better to interview custodians earlier in a legal dispute than later. This is especially true if the matter ripened into litigation. It is best to have a workable understanding of your client’s ESI (and the custodians) before engaging in discovery conferences with opposing counsel such as those required under Fed. R. Civ. P. 26(f).

There is also a “when” question that should be directed to the ESI custodians. Specifically, what is the relevant time frame for the legal dispute? Knowing relevant date ranges helps control e-discovery costs and promotes efficiency because data collected, processed and reviewed may limited to time periods in which relevant information is likely to exist. This prevents against over-preservation, over-collection and unnecessary review of irrelevant documents.

Where?

One of the most important questions to ask ESI custodians is where they keep relevant documents and information. To determine where custodians maintain relevant ESI and data, attorneys must understand what electronic devices they use. Laptop Computers or a Desktop? Do they use smartphones? Are personal accounts or devices used for work related activities? Do they use cloud storage or is the information stored locally or on a server?

Why?

The why is not necessarily a question for the custodians, but really a question about why it is important to conduct custodian interviews. As noted, utilizing custodian interviews and questionnaires helps satisfy obligations to preserve evidence, but they are also helpful tools to disseminate information about the legal matter, such as litigation holds, and also to document those communications.

(and How?)

The “how” questions address custodians’ practices and habits. How do they save and store information? Do they delete items regularly or on a schedule. Do they archive or back-up information, and if so, how? Do they use removable storage devices?