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When a litigation case is filed or litigation is reasonably anticipated, experienced eDiscovery professionals “know the drill” — it’s time to issue a litigation hold and preserve potentially responsive ESI for litigation. Failure to preserve evidence can result in sanctions — which (under Rule 37(e) of the Federal Rules of Civil Procedure) can be as significant as an adverse inference instruction to the jury to assume the evidence lost, was damaging to your case, or even dismissal of the case outright.
With that level of pressure, it’s important to ensure that your processes are sound for preserving potentially responsive ESI (which includes suspending auto-deletion programs). The first step in this process is identifying custodians and issuing a legal hold to ensure ESI is preserved for downstream discovery activities.
A critical step in this process is the proper scoping of preservation efforts. Preserving data for a limited number of custodians can leave your organization vulnerable to potential sanctions for not fulfilling your duty to preserve. However, preserving data for too many custodians can be very expensive as retention and deletion policies are suspended for those custodians until the duty to preserve is over, which could include multiple cases potentially involving the custodian’s data. In this blog post, we will look at the importance of the Identification phase of the EDRM model to set the stage for the discovery lifecycle and how custodian interviews can enable your organization to “right-size” the selection of custodians for legal hold.
Identification: The First Step to Cost Control
When legal teams reasonably anticipate litigation, they respond promptly, issuing a litigation hold and preserving potentially responsive ESI. The Identification and Preservation phases are two of the most critical steps that are the foundation of Rule 37 risk mitigation strategies. Swift execution is essential, but failure to properly scope custodians (and the ESI for those custodians) can set your eDiscovery project down a risky or expensive path.
Custodian Interviews are Key to Identification Success
Effective custodian interviews are the key to identifying custodians. There are four best practices to maximize the effectiveness of your custodian interviews:
1. Assess Proportionality: Just because a custodian may have ESI related to the case doesn’t mean you should automatically issue a litigation hold for them. Some custodians may have relevant ESI that can be obtained from another source. Or they may have relevant ESI in less accessible locations (such as a BYOD mobile device). The greater the burden there is in obtaining the ESI, the better case you can make in negotiations with opposing parties that discovery from those custodians is not proportional — especially if the ESI they possess is marginally relevant to the case. Every custodian for which you don’t have to issue a legal hold saves costs in discovery.
2. Start With a Template: Unless this is your first case, you should have at least one template for custodian interviews. In fact, you’ll probably need multiple templates for different types of custodians, such as individual employees, IT, HR, etc. The template(s) will continue to evolve, so you’ll need a repository that enables you to store multiple iterations of the template that address different scenarios. Frequent updating of these templates is essential to account for new data sources and changes in technology, ensuring that no data sources are missed.
3. Consider Various ESI Sources: eDiscovery is no longer just about email. Recognize the proliferation of ESI sources today and ensure the questions you ask will identify them. Those questions will include whether they utilize personal BYOD devices or shadow IT platforms for business communications. As much as 80 percent of company employees use shadow IT, so it’s essential to flesh out those sources, not just the IT-approved platforms. It’s also important to centralize information about ESI sources identified to facilitate preservation and collection.
4. Documentation Equals Defensibility: The key to defensibility is documentation — the more documentation you have regarding the process, the better you will be able to defend your approach. It’s vital to track data sources, custodian questionnaires, and all communications (including legal hold communications) with custodians to put your organization in the best position to argue disputes and demonstrate to the court a defensible process.
Conclusion
The Chinese philosopher Lao Tzu said, “The journey of a thousand miles begins with one step.” That journey can be even longer and more difficult if that first step isn’t the right step. Identification is the first phase in the EDRM model for a reason — it’s the first step to a successful eDiscovery project. A custodian interview process that is comprehensive, customized, documented, and defensible is the best way to “right-size” your selection of custodians for legal hold!
To learn more on how Casepoint Legal Hold can transform slow, manual processes into streamlined workflows, click here.
