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November 17, 2015 Articles

Custodian Interviews: Asking the Important Questions

By Selena E. Molina

I can still remember the first time I was asked to conduct a “custodian interview.” I emphatically nodded my head “yes” and assured the partner that I was up to the challenge—as all new lawyers are trained to do. But beneath my confident exterior, all I could think was: “What in the world is a custodian interview?” Little did I know, conducting custodian interviews would soon become one of my recurring duties.

A custodian interview is a necessary, but often undervalued, initial step in any litigation. It involves asking your own client where and how files are stored (electronically and in hard copy) and how many potentially responsive documents there may be. If done correctly, it not only ensures that you collect all potentially responsive documents—and perhaps that “smoking gun”—but also acts as a solid defense against attacks on the sufficiency of your document collection. For those reasons, custodian interviews must be robust, detailed, and well documented.

Custodian Questionnaires
Custodian interviews are generally aided by custodian questionnaires, or driven entirely by them. I suspect that many firms have a form custodian questionnaire for their associates to use. But strict adherence to any form will never gather the information necessary for a complete document collection. Merely handing a client a custodian questionnaire to fill out, or robotically going through it question by question, can result in missed opportunities, not to mention a potential ethical violation. Instead, think of a custodian interview as an art form that requires asking the right questions, listening to the answers, and following up as necessary.

Knowledge Is Power
Making relevancy determinations is a large part of the custodian interview process. Because custodian interviews often occur early in a case, it is difficult to know for certain what is and is not relevant. But a prepared interviewer knows the case and its allegations inside and out. She also knows, to the extent possible, her team’s current strategies—as well as those of the lawyers on the other side, if they have shown their hand at all. Armed with a clear picture of the facts and allegations, and with a plan of action, an interviewer can ask more pointed questions to collect all potentially responsive documents.

Just as important as knowing the case is knowing the client. In order to ensure that all potentially responsive documents are collected, an interviewer must understand her client’s document retention policies and business practices. Is the office generally paper-free? Does the office rely heavily on instant messaging? Do employees text, tweet, or post about company projects or events? Are there any practice-specific files that need to be addressed, such as computer-aided drawings or Excel spreadsheets? The interviewer cannot walk into the interview assuming that the client’s business operates the same way as the businesses that she has previously interviewed. Because each client is unique, the interviewer must become as much of an expert in the client’s ways as possible.

An interviewer must also know her interviewee. Should she really ask the chief executive officer about the types of backup storage used at the company? Perhaps that line of inquiry is best saved for the manager of information technology. Endeavor to understand the role of the interviewee in the overall corporate structure, and tailor your questions accordingly. Your custodian questionnaire should never be written in stone, but instead reevaluated and tailored to fit, not only each client, but each custodian.

Tone and Demeanor
When you are delving into a client’s business and document retention polices, it is important to be cognizant of your tone and demeanor. The interviewer is there to find all potentially relevant documents, not to invade unnecessarily the client’s or custodian’s privacy. Explain your role. Explain the discovery process. And make sure that the client knows, at all times, that your interview is designed to serve the client effectively, while also ensuring compliance with your duties as an attorney to conduct a thorough document collection.

Inevitably, an interviewer may come across a less-than-willing interviewee. Every custodian has daily personal and professional responsibilities. An interview for a case in which a custodian has minimal involvement may not be high on his or her priority list. And sometimes the interviewee is cautious—or suspicious—of an attorney’s questioning him or her about the business’s practices and procedures, or his or her own. These roadblocks are easily removed. Acknowledge the custodian’s busy schedule, and show appreciation for his or her willingness to meet. Explain the process and the custodian’s role in the overall case. Ensure that he or she feels like a partner—rather than a pawn—in the process. And endeavor to be quick and efficient. Ask only those questions that are necessary, and know when to end the interview.

Lasting Importance
Every practicing attorney should be kind and courteous when dealing with clients. This advice may seem unnecessary, but the importance of a thorough and candid custodian interview cannot be overstated. The interview, and the collection that follows it, are the foundation for the case. The trial team reviewing documents may ask you, “Why don’t we have monthly status reports?” You need to be able to answer confidently: “I asked, and monthly status reports are not prepared.” The other side may ask, “Why do we not have any documents from such-and-such a time?” The interviewer should be confident in responding: “All potentially responsive documents were collected.” An in-depth understanding of the client’s files—developed by building rapport with the client and a thorough record of a robust document collection—is the foundation for a sound litigation strategy.

The trial team can also learn helpful information from a thorough and well-documented custodian interview, allowing the team to prepare better both offensively and defensively. Custodian interviewers are sometimes given a “sneak peek” at the strengths and weaknesses in the case. Custodians may offer additional relevant facts when they respond to questions about what kinds of documents may be in their possession. An interviewer can also gauge a custodian’s suitability as a potential witness, considering the custodian’s proffered expertise, his or her role in the business, and his or her demeanor when being questioned by an attorney—albeit an ally rather than an adversary.

Discussions with custodians can also ascertain where the most relevant information is stored, so that the team can target its document review in a cost-effective and efficient manner, rather than collecting countless documents and reviewing them one by one. Effective custodian interviews not only cut down on review time and its associated costs, but they could even uncover early on a document that encourages settlement.

Apart from the litigation benefits, an interviewer has the opportunity to make personal connections with her client. She should use this opportunity for direct client interaction to make a lasting, positive impression.

An effective custodian interview has immense benefits, both for the litigation and for the interviewer. To reap those rewards, take the interview task seriously. Ask the right questions. Listen to the answers. Go “off book” when necessary. And always aim to please the client. When used correctly, this often-undervalued tool can allow even a junior associate to change the game.

Keywords: litigation, woman advocate, custodian interview, discovery, document collection, custodian questionnaire, young lawyers