By Chuck Kellner, SVP, Advisory and Engineering Group

Besides getting a good idea about the facts of your case and the value of potential witnesses, a good client interview helps you get a cost-effective review and a proportionate discovery response. A good interview is an under-appreciated, but highly effective tool in managing the cost of discovery.

What makes a good eDiscovery interview?
FOCUS, VERIFY AND DOCUMENT

1. Use your case, not a template. A lot of interview templates are just supersets of questions you can possibly ask. They have little to do with your client or case. If you’re going to use a template to help you with interviews, think first about your client, your case, and your custodian. What work did you do? Who did you do it with? What files did you make or receive? What emails did you make or receive? What copies did you make? Where was your desk then? What computers did you use? What software(s) did you use?
    

   The templates have a lot of stuff about stored information, infrastructure, business systems, servers, databases, desktops, remote computing, backups, and records retention policy. You need to know about this stuff and document it. Bring along a tech if you need the help. But for the custodian interview, focus mostly on your case, not your template.
   

2. Ask about words, names and dates. You conduct interviews because you want a narrative about who did what, when and why, preferably in chronological order. You want the chronology to help you evaluate for potential witnesses and to evaluate the strength of your client’s case. Along the way you should ask about what words or acronyms or code words or abbreviations were used. Ask about nicknames for projects and people. Ask if there was a particular way they liked to name files, or if there were any particular conventions for naming or storing files. Ask about dates: what is this individual’s assessment of beginning, ending and critical dates?
    

   Words, names and dates, in the aggregate, will help you cull potentially responsive materials from ESI that is not responsive. They will help you save many hours and many thousands of dollars of review. This is true whether you use predictive coding, key words, date filters, or concept-based search technologies.
   

3. Ask to see. Bad things happen in eDiscovery to clients and lawyers for not asking and not looking. In the EDRM rubric, identification comes beforepreservation. While there’s a chicken-egg analysis about preservation and analysis, in most situations you need to see at least some data to decide what is important to your case. If you’re interviewing and if the computer is on, ask to see some of the emails you are discussing. Ask to see the folders where the files are kept, because the “P:” drive for two custodians may be different. Ask to see the document management or database system that contains, for example, the software code or the engineering drawings. Ask to see what is meant by “I store e-mails in my archive.” Take notes and ask the techs supporting you to verify the location and storage of the data you are seeing.

4. Ask about changes, history and support. Don’t find yourself at deposition learning for the first time that when you did your interview, your witness was talking about their job two jobs ago in a different department, in a different office, on a different computer, with different access and IT support. Where were you working when all of this happened? Were you using this computer or did you get a new one since then? Were you using this software? Did you have access to anything then that you don’t use now? When you need computer support for access or software or hardware, who do you call? Who did you call back then?

5. Interview IT and (but) verify. We hear a lot, for example, that clients aren’t supposed to store email on their desktops and that it’s all stored in the email server or archive system. Most of the time we find that it isn’t true, and if we overlooked it, we would miss important responsive data not found anywhere else. You have to search the client’s immediate computing environment for stored or archived email and files. Likewise, you have to ask IT about the desktop and server default file storage locations for individuals and departments, and you have to compare what people say in their interviews to what you actually find in your searches.

6. DOCUMENT what you see and hear. Collate your results. Documentation is your sword in negotiating a reasonable scope of discovery. Documentation is your shield in showing that what you included or excluded in preservation and collection was reasonable. Documenting and collating the results of your interviews sharpens your sword and strengthens your shield. For example, if twelve of thirteen custodians point to the same folder in the Marketing share as the place where they stored their project materials, with a little testing and verification, you can use those interview results to avoid having to collect absolutely everywhere in the client’s computing environment for more. Your interview documentation is what helps to support your decision-making as reasonable.

Download the full whitepaper and learn about the problems that arise from executing an insufficient interview.