Articles

Silent Custodians Can Still be Important to Your Case

Written by Doug Austin, Editor of eDiscovery Today

One of the misconceptions that many people have about the EDRM model is that it represents only a linear flow for the order of discovery processes. People think that because the diagram seems to indicate an orderly flow to the process, from left to right, across the eDiscovery lifecycle. They look at it this way:

  • You identify ESI. 
  • You preserve it and collect it, either in two-steps or in a single step of preserving ESI by collecting it.
  • You analyze, process, and review – and those processes interrelate when it comes to approaches such as predictive coding (as all three are a part of the predictive coding process).
  • You produce ESI.
  • You present it at depos, hearings, and trials.
  • You perform all these phases linearly, and you don’t go back.

Wrong.

eDiscovery is often iterative, where discovery and review of some ESI often leads to identification of other ESI that you need to then preserve, collect, process, analyze and review. I’ve worked on many cases where additional potentially responsive custodians have been identified mid-review, leading to a need to go back and collect ESI from those custodians. Some of those potentially responsive custodians may be important, even if they’ve never said a word in responsive communications.

Typical Forms of Communication in eDiscovery

Unless you live under a rock, you understand that we communicate today in many ways, including:

  • Phone calls: These have only been around since Alexander Graham Bell uttered the famous phrase “Mr. Watson, come here; I want you” to his assistant in 1876, which was also the first instruction given by a supervisor to his subordinate by phone in a work setting.  These are the original form of “ephemeral messages”, so they don’t leave any ESI behind, unless they’re recorded. Or do they? You can obtain phone logs from most provider services, especially mobile providers, so those can lead to the discovery of potentially responsive custodians associated with the case.
  • Email: The most popular form of ESI in discovery today, email has become the channel most used for formal communications, though there are plenty of informal ones as well. All are potentially discoverable, of course. Even when recipients don’t respond to an email or group communication, their ESI may still be discoverable, especially if ESI from those other participants isn’t available.
  • Texts: Remember when I told you that one of Yogi Berra’s famous quotes about a New York restaurant was: “Nobody goes there anymore, it’s too crowded”? Email has become the form to avoid when you want to reach a colleague or client in a hurry. Many people turn to more direct forms of communication, such as text or chat message, to get a quick response. As this article from Corporate Counsel conveys, text communications with clients have become common. While texts are often one-on-one, as in the case with email group communications group texts can lead to the identification of additional custodians who may have responsive data.
  • Collaboration App: Same holds true here for apps like Slack, Teams and any other app where chat messaging can occur. Not all participants in a group chat are vocal ones.
  • Web Meetings: Meetings on Zoom, Teams, and other web platforms are not only being used to replace the conference room meetings that we held before so many of us became remote workers, but they are also becoming the replacements for many phone calls we used to have as well. And many of them are recorded, so that means the also may have associated discoverable audio, video, and meeting chat message ESI. Silent participants in meetings discussing responsive topics may have additional discoverable ESI which is responsive as well.

Example Scenarios Where ESI of Silent Custodians Could Be Important

Here are a few scenarios where “silent” custodians may be identified that have important ESI to your case:

  • Email with attachment sent to a recipient, the sender has left the company and his/her email archive has been purged, leaving the (silent) recipient as the only custodian with a copy of the email and attachment.
  • Text to a supervisor that says “we need to have a meeting to discuss the Johnson project” – that supervisor doesn’t respond via text, but a search of their email collection identifies a calendar item later that same day called “URGENT!! Johnson project discussion.”
  • Slack group discussion regarding company trade secrets where there seems to be no messages from one of the group members who has left the company and formed his own similar company. You find out that from the Workspace Admin that he had rights to edit and delete the messages he sent in Slack, leaving you to pursue the remaining group members for potentially responsive ESI that will help uncover potentially stolen intellectual property.

You get the idea. That’s why it’s important to consider all forms of ESI in each case as potentially responsive and to approach eDiscovery iteratively, understanding that you may have to go back to collect potentially responsive ESI from other custodians, even if those custodians were silent in the communications you did uncover. Sometimes, it’s the silent custodians that have the most to say, evidence-wise!

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