Canadian Lawyer

I prefer to do [custodian interviews] as early as possible and preferably in conjunction with establishing litigation holds to make sure that no potentially relevant information is destroyed. documents that are systematically organized, a records man- ager or person responsible for those paper records might also be included in this group. The second category, end-user cus- todians, includes people who created, received, or accessed the potentially relevant documents at issue. They are asked about their habits and practices in working with documents; about the computing devices and software they used while creating, accessing, or receiving those documents; and about all the locations where those documents might be. I prefer to do IT custodian interviews first, because with preparation sit in on the interview to make sure the correct information has been collected. A lawyer's participation in the interview helps ensure the conversations are kept privileged and the focus of the information gathering remains on the issues in dispute. Finally, as with any witness interview, it is important to a single interview I can gain valuable insight into company practices and obtain information that may be relevant to multiple end users. I use the IT custodian interview to ask for any applicable IT policies and procedures, including the acceptable use policy and social media policies (if these are relevant); about how the computers are configured; which computer applications people have available; how e-mail is made available to end-users; and to obtain a data map — a diagrammatic representation of the computer system, which will help guide me through the IT systems much like a geo- graphical or topographical map guides me through landscape. In this age of smartphones and cloud computing, I also ask the IT custodian about peripheral devices that are made available to end-users, and whether the company may store its data outside its own systems. I can also ask the IT department to generate reports about each user's particular configuration, including available hardware and memory size, the number of e-mail accounts available to a user, and reports on places where that person can store data. End-user custodian interviews help you understand how take good notes. I can often identify gaps in evidence collec- tion simply by reviewing my notes for the custodians in the aggregate. I also compare my notes from custodian interviews to the evidence collected when this becomes available. Many lawyers will find it unsurprising that evidence witnesses, much like fact witnesses, get the details wrong about their own documents and data or simply aren't truthful. I find it helpful to learn about these evidentiary misunderstandings and omissions early, and prior to oral discovery. Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm's e-discovery operations and can be reached at dnevin@mccarthy.ca. Lawyers' Professional Indemnity Company Susan T. McGrath each particular user created, received, or accessed documents. You can ask the end-user about what information he or she might have in relation to the issues in the litigation. I also ask about working styles, how they organize or "folder" informa- tion, and whether there is any special terminology or naming convention they use that can help me sort through or search information. This information can help me target the pres- ervation and collection of documents and can form the basis for developing search terms for use in searching or reviewing documents. I also find out if the user accessed information through home-computing systems or mobile devices includ- ing smartphones. In addition, I ask custodians who else they worked with in order to determine whether the custodian list is complete. Doing so may help me identify other people who should be interviewed. Some lawyers may feel uncomfortable doing a custodian interview, particularly if they are working with electronically stored information for the first time. It is acceptable to involve an expert, such as a vendor, or a lawyer or clerk specialist, but I recommend that a lawyer with responsibility for case Th e LAWPRO Board of Directors is pleased to announce the appointment of Susan T. McGrath as Chair of the Board. Since her call to the bar in 1979, Ms. McGrath has been a very active member of the legal community. She has served as president of her local law association, the Ontario Bar Association and the Canadian Bar Association. As well, she has contributed in many capacities on committees and task forces of these and other legal associations. relations, and the Law Society's compensation fund. She is well-respected for being an advocate for sole practitioners/small fi rm lawyers and those working in remote areas. As a bencher of Th e Law Society of Upper Canada since 2007, Ms. McGrath has served on numerous Law Society committees dealing with issues such as access to justice, professional development and competence of the profession, government programs to more than 23,500 Ontario lawyers, and title insurance in all Canadian jurisdictions. LAWPRO's TitlePLUS title insurance program is the only all-Canadian provider of title insurance in the market today. Ms. McGrath currently practises as a sole practitioner based in Iroquois Falls. LAWPRO provides malpractice insurance and risk and practice management www.CANADIAN Lawyermag.com JULY 2012 19 awPro-Susan_CL_July_12.indd 1 12-06-08 9:38 AM

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