Electronic Discovery – Custodians

One of the terms we use when working with electronic discovery is the term “custodian”. To those outside of our industry, it can sound like a misleading formal word which can sometimes confuse a newbie.

At the beginning of an electronic discovery matter, the attorneys will work closely with the client to identify key witnesses that have knowledge about documents that could be responsive to the document requests received from opposing counsel or investigative counsel.

In other words, the attorneys on the other side of the matter have asked to see certain documents. The individuals with specific knowledge about these certain documents will be identified and then the individuals who are in possession of these documents, as well as e-mail communications about these documents, will be identified as “custodians of data”.

The attorneys and their client will compile a list of these individuals and perhaps negotiate with opposing counsel to get the list down to the most finite list possible. They will then give that list to a technical team that is responsible for collecting the electronic data.

A litigation support professional should ask the lead attorney or paralegal for a list of the custodians as early as possible. Keep asking for it until you get it. Having this list ahead of time can help avoid confusion and it can improve the workflow process.

Typical information provided in the custodian list that has proven to be helpful to the litigation support team includes the following:

Custodian's Name
Custodian's User Name
Custodian's Position Title(s) during the pertinent time frame
Custodian's Department
Custodian's Assistant's Name
Custodian's Office Location
Custodian's Employment Status
Custodian's E-mail Address
Custodian's Phone Number

Below are some alternate definitions for the term Custodian:

From the Fios, Inc. e-Discovery glossary – Person having administrative control of a document or electronic file; for example, the data custodian of an email is the owner of the mailbox which contains the message.

From the Sedona Conference glossary – Record Owner: The subject matter expert on the contents of the record and responsible for the lifecycle management of the record. This may be, but is not necessarily, the author of the record.

If you have any questions, please ask them in the Comments section below.

 

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    • Chris Janak

      The concept of a “custodian” is becoming a bit antiquated. When identical data is harvested from multiple sources the practice is to identify a single “custodian” and then identify multiple “duplicate custodians” when in fact no single custodian can really be said to have maintained custody and control of the document.