It’s time to change your thinking about your custodian interviews.

A long, long time ago, in a galaxy far, far away, before people created information electronically, we used to conduct witness interviews.

Those interviews were the first conversations we had with the people in the trenches, who really knew the facts of the case. Those interviews were often the first time someone from the legal team was talking to the witness, and the witness would spew forth facts — ecstatic that someone was finally letting them tell their side of the story in what had spiraled into litigation. In every case I’ve handled, the best and most extensive facts come from that first round of interviews.

Then along came ESI, and suddenly the witness interview morphed into a “custodian” interview conducted not by the attorney, but by litigation support. And instead of the interview being about the facts and the witness’s role in the case together with where ESI has been created, sent, received or stored, it’s become all about what the witness has in terms of ESI.

If a checklist of items to ask a witness about where they have data is the sum of your custodian interviews, you are missing an enormous opportunity to learn volumes about the people and facts of your case, as well as ways to organize the data you do find much more cost effectively.

Here are 5 reasons to consider changing your tune and conducting a merits-based custodian interview instead of the “what do you have” approach:

1. You’ll get a true focus on who the key players are and who has the information you need to collect vs. who is extraneous.  The best example of this is when you have a list of 20+ custodians and you find out that there are really 10-12 central people who all overlap. Start with the most knowledgeable person and ask them who the key people are on the issues and their roles, so you know out of the gate who you need to talk to and in what order. Ask about third parties, and breakdown who the people are at those third parties. Also, don’t forget to ask about domains. You can filter quickly using domains — Dave emails with Sue at That let’s you assign a filter to a specific email or domain.

2. You’ll have a reasonable basis to limit the scope of preservation and production. Key custodians will tell you exactly — I mean to the day — when issues arose by dates. Several witnesses I’ve interviewed often go back and look at their emails during the interview to see when they got involved, and at what time their roles/responsibilities changed. You want to have a focused preservation and production period no matter which side of the v. you are on — so let the custodians give you a valid basis to argue for that narrow time window at the meet and confer, initial scheduling conference, in a letter, etc. Even for plaintiffs, a focused preservation and production window lets you focus on what is important. You have to make educated decisions and let go of the notion that you need that overbroad range. If you ask the right questions, you have the ability to argue for reasonable limits with the judge as well.

3. You can save time and money by learning which data to focus on first, and which data to collect, but not to sift through just yet. In a recent matter, we collected more than 350 GB of data from 12 custodians, and much of it was high quality image files. By understanding that the focus of the case was on the image files and not on the email and attachments unless the matter survived the MTD, we saved tens of thousands of dollars by not filtering through that data.

4. You have a better sense of how this witness fits into the picture, what elements of each theory of the claim they will provide evidence on, and who you need to talk to next. I ask open ended questions at my interviews — what was your role? What were your responsibilities? Timeframes? Who were the key people on this project with you? How did you communicate with internal folks? Who were they? External folks? Who were they?  One of the biggest issues in ESI is dealing with third parties and preservation. How do you know what they have to tell them what to preserve in a letter? Ask your witnesses, they know. They have spent months and usually years working with the other side, and they know them and their business practices. ASK.

5. You’ll find the puzzle pieces faster. We’ve talked about the puzzle pieces. As a discovery strategist, my job is to sift through all of the pieces to find the ones for just my puzzle and then put them together, gift wrapped, for trial counsel. Your witnesses have the puzzle pieces. You can talk to them, test out the other side’s theories and see what they think. In an employment matter recently, I explained some allegations of the complaint on a discrimination claim to the witness and asked what he thought. The witness told me he couldn’t believe it, that he knew that wasn’t true, and when asked, proceeded to point me to the exact email I needed to refute that specific claim. Puzzle piece — check.

Change your thinking about your custodian interviews. I can’t stress this enough — discovery is a balance between furthering the goals for the case, identifying where the high dollar claims are, and seeing what the data tells you. Talk to your witnesses and hear what they are telling you. If you are conducting a “What do you have” custodian interview, you’ll miss that balance.

This article first appeared on Above the Law.