The recent raft of spoliation sanctions like Iacovacci v. Brevet Holdings, LLC seem to share fundamental misunderstandings around where key decision communications resided and how to preserve them. Broadly worded legal hold notices do indeed usually cover text and chat messages. Rarely do they convey practical instructions on preservation. In my opinion, these informal communication channels were once viewed as ‘non-records’ and avoided by defense counsel unless called out in interrogatories or discovery requests. Rather than asking ‘What do you have?’, I believe that custodial interviews should start by asking ‘How do you drive your business day?’ By focusing on how custodians gather information, make decisions and convey instructions, counsel can better define potentially relevant ESI sources.

I have been spending a lot of time recently researching evolving knowledge working styles. I have written a lot of custodial questionnaires over the decades, most of which started on the wrong foot with giant lists of every potential data source or system that the custodian has access to. We typically use qualifying clauses like, ‘potentially relevant to the matter issues defined above.’ The all-encompassing list makes sense in a ‘preserve broadly, collect narrowly’ risk reduction strategy. It sees all data sources as being of equal potential relevance and risk. That approach minimizes the time and effort required by custodians and legal teams who regularly receive and issue legal holds. Holds typically require custodians to alert the legal team about relevant data sources with limited capacity or active expiry functions.

The days of ‘do no harm’ instructions are numbered as primary data sources increasingly shift from on-premises enterprise systems to mobile or cloud based applications. Most custodians cannot be expected to understand how M365 manages their Teams transcripts or how their texts could be lost when upgrading their iPhone. A proactive custodian interview should explore how that custodian conducts the relevant business communications and decisions at issue. Start with the most relevant data sources. Maybe your exec shuns email (another blog coming on this) in favor of texts/calls/chat on various platforms. Maybe they manage active projects entirely in Microsoft/G-Suite To Do or Planner. I am running into Asana, Trello and other cloud task management systems with increasing frequency.

My point here is that you need to understand the working style of your key custodians to identify and preserve relevant ESI. Global M365 custodial holds catch a lot of the traditional ESI, but knowledge workers are innovating and adopting faster than we can create automated preservation systems.

So how do you drive your day? I am conducting active research and would love to understand how you manage the daily deluge of communications, alerts and reports raining down on you. If you do not have time for a short call, I even have a private survey here.

Greg Buckles wants your feedback, questions or project inquiries at Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.

Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer a journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being published. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations. 


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