5 Vital Components of Every Custodian Interview

1. 5 Vital Components of Every Custodian Interview David Meadows, PMP, Managing Director – Discovery Consulting, Kroll Ontrack Dave Canfield, EJD, Managing Consultant – Discovery Consulting, Kroll Ontrack

2. David W. Meadows, PMP • Managing Director – Discovery Consulting, Kroll Ontrack • Experience with information planning, data preservation, data collection, data processing, and complex data analysis • Broad technology background covering enterprise networking, software design and development, and system implementations • Previous work: electronic discovery consulting director for an international consulting firm, senior manager of information systems for a fund management company, project manager developing enterprise applications and head of IT for a Chicago law firm

3. Dave Canfield, EJD • Managing Consultant – Discovery Consulting, Kroll Ontrack • Assists clients in the creation of discovery, data collection, case management, systematic processes, and documentation to support repeatable, efficient, and reliable e-discovery procedures • Frequent expert witness for complicated IT systems • Senior advisor in e-discovery for a global pharmaceutical company • 20+ years experience in IT management and senior management

4. Discussion Overview • Introduction to Custodian Interviews • 1.Location of Relevant Documents • 2.Privilege Communication • 3.Compliance with Policies • 4.Other Important Custodians • 5. Background Data • Other Considerations • Conclusion

5. Introduction

6. As every good lawyer knows… Electronic information must be preserved whenever litigation is reasonably anticipated

7. Litigation is anticipated—now what? • Initiate a litigation hold • Critical aspect of a successful litigation hold: custodian interviews • Information gathered during custodian interviews: • Sets the stage for the entire e-discovery process across the EDRM • Helps develop a detailed data map • Aids in preparation for 30(b)(6) depositions • Remember: document all custodian interviews

8. 5 Components of a Custodian Interview • 1.Location of Relevant Documents • 2.Privilege Communication • 3.Compliance with Policies • 4.Other Important Custodians • 5. Background Data

9. #1: Location of Relevant Documents

10. Location of Relevant Documents • Ask specific questions and walk through a comprehensive list of potential data sources, including: • Business and personal: • E-mail accounts • Computers, iPods, flash drives • Phone calls, voicemail, Skype • Databases, cloud services • Network servers, structured data systems • Social media sites • Text messages, instant messages • Document management tools • Rule of thumb: anything with memory

11. Location of Relevant Documents ? • Beware! Custodians will often identify only some of the locations where relevant documents could be stored

12. Location of Relevant Documents • Do not forget the paper! • Ask where paper documents are stored and note the locations • File cabinet, briefcase at home, box in trunk of car, etc.

13. Location of Relevant Documents • In Coleman (Parent) Holdings v. Morgan Stanley, a 2005 Florida case, Morgan Stanley was unaware of where it stored its electronic data, and was thus sanctioned for discovery abuses. A jury awarded the plaintiff $1.4 billion in compensatory and punitive damages. • Case Study:

14. #2 Privilege Communication

15. Privilege Communication

16. Privilege Communication • Benefits of separating privileged documents at the custodian interview stage: • Helps create an appropriate list of search terms to ensure privileged documents are not overlooked • Increases efficiency by saving time and money – teams can skip review of these documents • Improves overall defensibility of litigation hold when privilege is meticulously addressed at the custodian interview stage

17. #3 Compliance with Policies

18. Compliance with Policies • Why is compliance more important now than ever in the e-discovery context? • According to IDC: Over99% of all documents are now created and stored electronically About 60 billion e-mails are created and sent each day

19. Compliance with Policies: Document Retention • Ask whether the custodian is aware of the company’s document retention policy—especially when it comes to electronic documents • Note: companies are responsible for creating and instituting their own document retention policies specific to regulations for their specific company’s industry

20. Compliance with Policies: Legal Hold • Parties that fail to initiate a defensible legal hold face spoliation sanctions • A defensible legal hold starts with the custodian! • Case study: • In U.S. v. Philip Morris, the court determined that Philip Morris destroyed e-mails on a monthly, system-wide basis for two months after a preservation order was issued. Sanctions imposed: $2,750,000, plus a $250,000 fine to each of the eleven corporate managers who failed to comply with the legal hold.

21. Compliance with Policies: Legal Hold • Recommendations • Give the custodian another copy of the latest litigation hold notice • Remind the custodian of his/her preservation obligation • Provide the custodian with basic information about the case • Ask with whom (family, attorneys, co-workers, media, etc.) the custodian has discussed the matter • Remind the custodian that the matter is sensitive and that it should not be discussed outside the company • Answer any questions or direct the custodian to the appropriate resource

22. #4 Other Important Custodians

23. Other Important Custodians • “Who else knows about this matter?” This question is a good start, but there is more to finding other custodians…

24. Other Important Custodians • Depending on the nature of the matter, cover: • Outside vendors • Consultants • Contractors • PR professionals • Etc. • Helps identify who should receive notice or third party subpoenas in some cases • Do not forget departed custodians who were present during the relevant period

25. #5 Background Data

26. Background Data • Provide to the custodian: • Basic case information • Client’s information • Obtain from the custodian: • Name (and any previous names) • Employment history for the relevant time period • Role • Tenure • Location • Contact information

27. Other Considerations When Conducting Custodian Interviews

28. Other Considerations • Itis not just the where—itis also the how • Ask the custodian how they organize their documents • Determine whether there is a reliable organization structure and method; if not, you may have to arrange for organization

29. Other Considerations • Keep connected • Tell the custodian who to call with questions or concerns, especially with regard to compliance issues • Remind the custodian to call counsel if she/he remembers anything later

30. Other Considerations • Collection • Once potential sources are identified, it is recommended to immediately do the collection, both paper and electronic, if possible

31. Q & A