After you’ve ensured that your client is preserving all potentially relevant or responsive electronic data, you need to identify what E-data to collect for potential use in the litigation, including for discovery. This means you need to find the key data custodians and pick their brains.
To get a clear understanding of your client’s data, find out:
- Who creates or generates data;
- What kind of data is created or generated;
- For what purpose the data is created or generated;
- How the data is used; and
- Where the data is stored.
Once you’ve got a handle on the nature of your client’s data, you can create a map of the spots on the network that are likely to hold data relevant to the case and identify the custodians of that data.
Always interview IT personnel, particularly the person whom an organizational client has designated to be deposed on its behalf about data matters “known or reasonably available” to the organization. See CCP §2025.230; Fed R Civ P 30(b)(6). This person should have a thorough understanding of the network and how information is stored across the network.
Wondering what types of questions to ask the data custodian? Start off with some general questions to learn about the nature of the custodian’s position and the type of information he or she creates or uses, such as:
- What applications (i.e., computer programs) does the custodian commonly use to create information?
- What kind of reports does the custodian generate?
Another important series of questions to ask the data custodian relates to where the data he or she creates is stored, e.g., whether on a hard drive or on the server. Also get information about the type of workstation he or she uses: whether it is desktop, laptop, or home PC (personal computer); whether the custodian uses portable storage devices, e.g., CD, portable thumb drive, or iPod; whether the custodian uses any external hard drives; whether the custodian has access to any flash drives or any other systems in which data may be retained. Also ask about use of copiers, fax machines, and printers, each of which may contain stored electronic data.
The interview should also cover information about:
- the operating system, i.e., the software that controls the allocation and usage of hardware resources such as the memory, central processing unit (CPU), and disk space, and the client’s standard user configurations and any variance from this standard.
- your client’s standard supported applications, e.g., MS Word or Excel, or Adobe Acrobat, including whether any applications are proprietary, i.e., developed and owned by the client (because data used by proprietary applications usually can’t be viewed without a copy of the proprietary software).
- whether relevant company employees use personal computers or other devices off-site to access office files, data, or e-mail.
- your client’s e-mail system, including the hardware that it uses, the server specifications, the number and location of servers, the number of e-mail accounts, the account size limits, any retention and backup settings and policy, the location of potential custodian e-mail boxes, and the types of access to the e-mail system, e.g., whether it can be accessed via the Internet.
For a handy checklist of questions to ask the data custodian and the information you may obtain, turn to CEB’s California Civil Discovery Practice, chap 4. That chapter provides excellent coverage of all issues related to electronic data and discovery.
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