Five Considerations for eDiscovery Custodian Readiness Interviews in 2020, Part Two
Written by Doug Austin, Editor of eDiscovery Today
A few weeks ago, I discussed Three Components to Assessing Your Organization’s eDiscovery Readiness from the Ground Up. One of those components was conducting interviews of key personnel, which included interviews with at least one or two key representatives of the legal department, IT and records management departments. Last week, I discussed the first three considerations for effective eDiscovery custodian interviews in 2020; today, I’ll discuss the remaining two.
Consider the Source(s)
I’m sure I don’t have to tell you that, in 2020, there are more sources of ESI than ever. Mobile devices of custodians are routinely responsive in litigation, as are communications from collaboration apps like Slack and Teams (which are being used even more heavily since the pandemic began as colleagues can’t simply walk down the hall to discuss tasks and issues when working remotely). Not to mention that data is being stored in more locations than ever to enable remote workers to get their jobs done effectively. Here are five areas to specifically address to identify potential locations of data that might not be readily apparent:
- Personal email: Do the custodians ever use personal email accounts to transfer company data? It could be for a completely innocent reason, but it happens all of the time, regardless of company policies regarding use of personal email accounts.
- Mobile Devices: These days, you expect custodians to be using cellphones for company use, with many of those being Bring Your Own Device (BYOD) devices. Hopefully, the organization has a policy that governs the use of BYOD devices. But, BYOD devices can extend beyond just the cellphone – I’ve seen many people extend email clients to their iPads or Android tablets, which must also be accounted for as well.
- Cloud Storage and Portable Media: Do the custodians ever use Dropbox or Google Drive for sharing company ESI? Do they use flash drives or external hard drives they use for moving data or backups? It’s likely they do, especially during the pandemic and remote work. You need to ask specific questions about these sources, where they are and how they’re used. Again, company policies may govern the use of these data storage mechanisms, but there is no guarantee the policies are being completely followed, so it’s important to ask about these specifically.
- Collaboration Applications: Your organization may have selected approved apps for collaboration within the company – Slack and Microsoft Teams are the most common. However, there are a slew of other apps out there, so you want to make sure to address any potential communications through other apps or channels within approved apps outside the standard company channels.
- Social Media: It’s not too common for custodians to share company ESI on social media, but it’s not unprecedented either, so you have to ask about that too.
Trust, but Verify
That phrase used by President Reagan repeatedly in discussions with Soviet Prime Minister Mikhail Gorbachev (actually borrowed from the Russian proverb Doveryay, no proveryay) may be “so 80’s”, but it is very appropriate today as well. Regardless what the key employee tells you regarding their handling of ESI, you’ll want to verify that information to the extent possible. Verification can occur in two ways:
- Other Interviews: To the extent you’re interviewing other key employees who work in similar areas, you should tailor your questions, in part, to confirm what you’ve learned from previous interviews.
- Employee Surveys: As discussed, this third component to assessing your organization’s discovery readiness from the ground up can flush out potential issues about which the key personnel may not even be aware. Just because the IT director has set a policy in place for the department (or the entire organization, for that matter) doesn’t mean that policy is fully being followed. Surveys can help flush out the differences between policy and practice.
These five considerations for eDiscovery custodian interviews in 2020 will help you better assess your organization’s discovery readiness assessment when conducting interviews with the key employees in your organization. Now, all you have to do is implement them!
For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!
Tune in to hear Doug Austin, Tom O’Connor, and Jim Gill discuss:
How to Conduct a Legal SWOT Analysis on 9/9!