Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-01-26 05:15:56Format, images and links may no longer function correctly.                 Common sense, law school and practical experience all tell a litigator that interviewing a custodian is the best way to identify potential ESI. The concept of custodian selection is founded on decades of paper based discovery, where drafts lived in the office, recent records in the file room and cold files in the warehouse. This made sense when it took effort to create actual paper documents and a large portion of those became corporate records within the system.

                Evolving business communication and storage technologies have created an ever-mutating viral ESI pandemic. Custodians no longer understand where or how their systems are hiding drafts, emails, IM logs and network virtual directories. Even the most thorough interview may miss entire departmental shares when IT has migrated them from Direct Attached Storage to huge virtualized platforms without updating drive mappings or has simply redirected links behind the scenes.

                This issue was brought home to me on a recent consulting engagement. The custodial interviews had been conducted by a young, talented outside counsel with a very comprehensive set of standardized questions. Counsel and custodians insisted that they had uncovered every relevant network repository. We used a new program to get an inventory of all folder and file names on the primary file servers and discovered an additional tenfold population of folders with key unique terms in the folder names. That means that the custodians only remembered or knew about 10% of the potentially relevant folders that existed on their network.

                I can just hear all of my fellow forensic specialists clamoring that this is a mandate for imaging the entire SAN environment. Only counsel can make that final judgment, but that would have cost much more than was at stake in the matter and would have unnecessarily exposed unrelated corporate trade secrets to the risk of inadvertent disclosure. Overly broad collection just does not add up.

Rather than being a barely averted discovery disaster, this episode highlights the need to back up custodial interviews with a reminder that reasonable diligence mandates documented quality checks and leveraging technology to enable counsel to make informed relevance calls on ESI in place.

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