What I Learned from Finding Nemo About Custodian Identification in E-Discovery Matters

by Exterro, Inc.
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Exterro Comprehensive Guide to E-Discovery Preservation

In Pixar’s wonderful animated feature, “Finding Nemo,” Marlin, a clown fish who lives in the Great Barrier Reef (and is the title character’s dad), spends nearly the entire film trying to find his son, Nemo, by locating, questioning, and gathering information from a number of sea creatures while travelling across the ocean.

As most attorneys can attest, the process of tracking down possible custodians and finding the information pertinent to the case can feel like traveling through an ocean full of fish to find Nemo. That’s why we put together this Custodian Identification Roadmap to guide you on your way. Whether the data is stored in emails, documents, or hardcopy files, it is important for the attorney to make sure every important piece of evidence is collected.

  •  When the complaint is initially received, there is a constant stream of activity between the attorneys, in-house counsel, and opposing counsel, so the earlier you can bring in Litigation Support, the better.
  • While attorneys are going through the process of identifying potential custodians, they may need to tell opposing counsel a turnaround time for producing documents. One rule of thumb attorneys can use to determine workload, is multiplying the estimated number of custodians by the estimated volume of data per custodian.
  • When the process of collecting data begins, there are usually two assumptions that can be made. The first assumption is that emails will be collected from a specific range of dates specified in the subpoena, and that the electronic data from shared network drives will be collected.
  • At this point in the process an organizational chart will be needed to keep track of who is working on what data, and the time frame they need to produce it. Many custodians are added later in the process, so it’s important for attorneys to keep Litigation Support updated of additional changes.
  • Sometimes custodians use other data sources (mobile messaging, data archives, etc.) that may contain relevant ESI. This is why it’s important to interview custodians to get firsthand knowledge of possible data sources, or other possible custodians.

The process of locating and interrogating custodians can be long and tedious for both litigation support and attorneys. Just remember, keep your friends close, your anemones closer, and your custodian’s important legal documents the closest.

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