Canadian Lawyer

BY DERA J. NEVIN TECH SUPPORT What is a 'custodian interview' and why should I do one? the earliest possible opportunity can improve the discovery process, particu- larly when electronically stored infor- mation is involved. A custodian interview involves ask- I find it surprising when litigators choose not to do full "custod- ian interviews" before beginning the discovery process. An effect- ive custodian interview done at ing people who may have documents relevant to litigation (i.e., custodians) about those documents, where to find them, and what they might contain. Custodian interviews are just old-fash- ioned lawyering, applied to e-discovery. Custodian interviews are also lawyer work product and, arguably, are subject to litigation privilege. These types of interviews are useful because they help you to identify all the locations where custodians have paper or electronically stored information and can provide information about which electronic records each person creat- ed, received, and accessed, and where these these interviews can help you preserve and collect potentially relevant docu- ments and identify, at an early stage, those documents that do not need to be collected. Determining early what is available and relevant can ultimately help lower the costs of e-discovery by simplifying the collection process and ensuring that litigation holds are imple- mented so spoliation and destruction of records is avoided. These interviews can also establish the basis for arguing are stored. Information from 18 JULY 2012 www. CANADIAN Lawyermag.com proportionality in meet-and-confer conferences or on a discovery motion, because they will provide you with information to show how the cost of collecting or producing electronically stored information may exceed the value of the claim or the utility of the information sought in the litigation. The best time to do custodian inter- views may depend on how the litigation and fact finding is unfolding. I prefer to do them as early as possible and preferably in conjunction with establish- ing litigation holds to make sure that no potentially relevant information is destroyed. I view custodian interviews as a natural extension of the early fact interviews conducted of individuals with knowledge of the case. Custodian interviews can be understood as another step in gathering information that can be used to advise the client about the possible manner in which the litigation and discovery process may unfold. There are two categories of custod- ians to be interviewed: IT custodians and end-user custodians. Where com- panies or organizations are involved, IT custodians are the people respon- sible for the overall management of the information technology systems. Where there are extensive paper collections of shUtterstock

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