Author: Helen GeibBest PracticesEDRM

Ask the Right Questions: eDiscovery Identification Part 2

eDiscovery identification part 2 image

Effective identification of relevant ESI is the foundation of a successful eDiscovery project. Identification generally follows a five step process: learn about the case; learn about the client’s IT systems; build a detailed data map; follow up on technical and other issues; and document the project. Part one of this series was an overview of the purpose, process and practical considerations of identification. In parts two and three, I offer a detailed review of the five steps.

Step 1: Learn about the case

When a new case comes in, a litigator’s first order of business is to learn what it’s about. What are the legal issues, the factual background, the key players and the relevant timeframe?

Add “what are the main sources of ESI” and the first step of identification dovetails neatly with this line of questions. Litigators who don’t feel comfortable talking about ESI with the client should partner with a more technology-minded lawyer or seek consulting support from their eDiscovery or forensics service provider.

In practical terms, this step should produce:

  • A summary description of the subject matter of the case that can be shared with the client’s IT staff and employees in possession of relevant ESI – custodians in eDiscovery parlance;
  • Cut-off dates for relevance or an assessment that the relevant events are open-ended;
  • Employee distribution list for the litigation hold notice;
  • Initial list of custodians for ESI questionnaires and/or interviews;
  • Preliminary identification of relevant data sources (g., email, file server, databases, mobile devices);
  • Assignment of an IT contact who can speak knowledgeably about the company’s current and past systems and employee data practices.

Step 2: Create a data map

The second step is to create a data map based on interviews with the client’s IT staff. An eDiscovery data map describes the potentially relevant ESI in the client’s possession, custody or control; this includes data sources, data types, custodians, locations and estimated data volumes. The IT contact will be able to provide the framework and many of the details for the data map.

Plan on 1-2 hours for an in-depth discussion of systems, devices and procedures. Ask the IT contact to describe the company’s email system, PC (desktop/laptop) usage, network, file server, document management system (e.g., Sharepoint), databases, cloud storage usage (e.g., Office 360), mobile device practice, archives and backup systems. Also ask about prior systems used during the relevant timeframe, including data migration to the current system and accessing legacy systems.

Another important topic to cover with IT is disposition of former employees’ data. Particular points to cover include

  • IT procedures during employee off-boarding
  • redeployment of devices
  • mobile device access
  • retention periods
  • archiving of email mailboxes and user accounts on the file server or comparable shared systems

Be sure to ask specifically about archived data of any former employees identified as custodians during step 1.

It’s often the case that the IT contact will need to do further research into some of the topics, especially data migration and former employee data. Review action items at the end of the meeting and set working deadlines for follow-up responses or calls.

Step 3: Question the custodians

The next step is to fill in more details of the data map. This is accomplished through custodian questionnaires and/or custodian interviews.

The work product goal is a target list of ESI identified as potentially relevant for preservation and collection. A target list might include, by way of example, folders on the file server organized by network drive and identified by full folder path; a list of email mailboxes, with a notation that collection will be limited by start and end dates; reports generated by database administrators according to criteria provided by counsel; and messaging data from specific employees’ cell phones. The employees who create, use and manage the ESI are naturally in the best position to provide these details.

Use the list of company IT systems and other available data sources developed during step 2 to create a custodian questionnaire or interview script. Questionnaires and interviews may be used by themselves or in combination.

When used together, it’s in one of two ways. One option is to start with questionnaires and use interviews on an as-needed basis to clarify or dive deeper into responses. The other option is a tiered approach based on employees’ substantive knowledge of the case. Under this approach, the primary tier of key custodians is interviewed while other custodians are given questionnaires.

Always include an open-ended question to the effect of “do you know of any other documents or other electronic information that might be relevant to this matter?” First, IT isn’t necessarily aware of all the ways that employees create or save ESI, and employees may know of sources that weren’t identified during step 2. Second, some custodians are confused by technical terminology and may not understand the questions without additional explanation.

On a related note, during interviews it’s often helpful to also ask if the custodian is aware of any other employees who might have relevant information.

It should be evident that this step builds on step 1 in addition to step 2. It requires a list of custodians, relevant timeframe and sufficient knowledge about the subject matter of the case to make relevance determinations based on information provided by the custodians.

The next post will continue with a review of steps 4 and 5.


Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney. 


This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.

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