Forget Deposing the IT Guy for eDiscovery:  Talk to the People Who Create the ESI

I’ve probably conducted 15+ depositions of IT personnel for eDiscovery purposes, and I can tell you flat out that it is primarily a useless endeavor.

WHY?  Because they don’t create the information, and you won’t get what you are looking for out of the deposition.

The job of the IT department is to build the bookshelves that house the ESI of the organization.  If the company needs to run Office apps, ERP software, procurement systems, accounting tools, open portals for distributors to access, use instant messaging and provide mobile devices, IT makes all of that happen.  They build the infrastructure to make all of that run and work together for the business.  Your company runs off virtual machines?  Great.  They make that work.

But, when it comes to what books are stored on the bookshelves of their systems — i.e. the Word docs, spreadsheets, specific database fields, CAD drawings, contracts, policies, etc. — IT doesn’t know what’s there OR what’s stored where (and most don’t care).  You want to know what kinds of information are kept in the ERP system or Sharepoint on the various team sites? IT doesn’t know.  So why bother asking?

(There are times when deposing IT is helpful.  If you really need to know how long email is kept, whether a party uses Mac/PC’s or Exchange vs. Gmail, those are questions IT can answer.  But those aren’t usually the important questions at the outset, AND you should be able to get counsel to answer those, just send them a list in advance of the Rule 26 conference.)

When you are starting out in eDiscovery and trying to figure out the scope of what you want, start with the people who are creating the information you want in discovery.

Take a 30(b)(6) or PMK (person most knowledgeable) deposition of some fact witnesses in the different departments you are interested in.  Find out how the department is structured, who plays what role, and how the employees communicate (via email, IM, text, etc.).  Then find out the five key people that you should start with.  I love to ask , “if I said I want to talk to the person who had the most interaction with this project, who would it be?”  That’s gold.

If I ask for one witness’ email, I get the email for EVERY SINGLE PERSON that he’s communicated with (that’s responsive, of course).  Then I can decide who else I want.  AND I get one witness’ email FAST.  It doesn’t take months like when I ask for 10 witnesses.

Seeing any lightbulbs yet?  I’m talking about doing it differently than you have been.  Doing it better.  More directed to what you really want and need.

Let go of thinking you need to talk to IT first.  That’s their lawyer’s job and you should make him or her do it.  Instead, ask for the fact witnesses.

Yes, you’ll meet some resistance.

Yes, you will need to get the other side to agree or go to the court to be able to depose the few fact witnesses JUST about the types of information created, how the department works, and with whom they interacted on key issues.

Yes, you’ll be asking to depose fact witnesses first just on the types of information that’s created and how it’s stored and where it’s stored, and THEN asking later to depose those same witnesses again about the merits once you have documents.

No, nothing in the rules precludes you from deposing fact witnesses — FRCP 30(b)(6) specifically provides for it.  What’s more, the Sedona Principles, and every amended rule providing for the cost effective use of eDiscovery are in line with this type of approach.  They all advocate for parties to cooperate, and come up with ways for parties to get the information that they need in the most cost efficient manner.

Do it Better.  Think differently.  I promise you’ll get to what you want and need faster, and you’ll save money by targeting your discovery requests.



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