I was defending a major corporation at trial when one of my most important witnesses called me at ten o’clock at night, after the first day. He was scheduled to testify the next morning.
“Bill, I forgot to mention something to you. I’ve got a folder of pertinent documents in my desk drawer here at home.”
I had to call opposing counsel, then face the judge first thing in the morning with a jury waiting.
Maybe I had not questioned the witness enough. But the longer I thought about it, the more the problem was bigger than a missed question. The company had a records system, an organization chart, and a retention policy, and none of them knew that folder existed. To him, I suspect, that drawer was simply part of how he worked. I had interviewed an employee. I had not visited his world.
The Map and the House
This week my e-discovery class worked on litigation holds. When a company anticipates a lawsuit, it sends a hold notice to the people Zubulake called “key players”: custodians who may have information bearing on the case. Then comes the step we often misunderstand. We do not stop at another email. We visit and interview the custodians, because we cannot be sure our list is complete, that we know where the information really lives, or that the custodian has really followed the notice.
Everything the company knows about its custodians is abstract. The org chart gives a title. The records policy says where email is supposed to go. IT knows which systems exist. That’s the map, and we need it. But nobody works on a map.
Each custodian lives in a world that makes sense to her, and that world is built largely out of data. Ask ten people how they organize their inbox and you will get ten answers. One files everything in carefully named folders. Another never files and just searches. One lives in Teams chats and treats email as a formality. One works from home and keeps the real working copy on her own laptop because it is faster. Each is following the company’s rules in her own way, and sometimes slipping past them at the edges, not out of bad faith but because the rules were written for no one in particular and she is someone in particular.
The org chart tells me what she is: a regional manager, say. It cannot tell me who she is: how she works, what she treats as important, where she puts the things she cannot afford to lose. She does not consult her data the way we consult a library. She lives in it, the way you live in your house, and she knows which drawer sticks.
A Visit to Her World
I ran a practice interview twice for my students, with a volunteer playing the employee each time.
In the first version, I asked the standard questions and took the answers I got. Did you read the notice? Yes. Did you follow it? Of course. It took under a minute, and I checked every box. I asked the class how I had done. They saw it right away: I would have learned nothing.
In the second version, I treated each answer as the start of a conversation. Do you read your email anywhere besides your computer? On my phone. Anywhere else? “I don’t think so.” A pause. “Well, I guess maybe a laptop.” The questions kept coming: when? How? Where? Why?
That pause was the whole point of the exercise. Ask someone to describe her tools, and she will struggle, because she does not look at them. She looks through them at the work. Her inbox, her folders, and her chat threads are like the pen in her hand. She notices them when something goes wrong: the file will not open, the folder is full, the phone dies. The rest of the time they vanish into the job.
So, when I ask where she keeps things, I am asking her to stop and look at something she has never had reason to look at. The pause is the moment it comes into view. That is why “do you use personal email?” gets a quick “no,” and “walk me through yesterday morning” gets the laptop, the thumb drive, and the folder at home. The first question asks for a category. The second takes her back into the work, where the tools reappear.
A hold notice does the opposite. It takes something that was part of her working life and declares it evidence. No wonder “yes, of course” comes so easily. She agrees to protect something she has not yet noticed she has, and nothing in her annual review rewards her for finding out. The mock employee in the first version was not being difficult. A perfunctory interview gets that answer from nearly everyone, including the person who deleted the file on Tuesday.
It is not a conversation between equals. I have an agenda, and I am there for a reason: to find what matters to the case, not everything, and to make sure it is safe. But it works best when she feels like what she is, the expert on her own world.
Two Kinds of Checklists
Some checklists should be followed to the letter. A Florida hospital once amputated the wrong leg, and that kind of failure is why surgical teams now confirm the patient, the procedure, and the site before anyone picks up a scalpel. In the movie Sully, right after the bird strike, the pilot asks for the QRH, the Quick Reference Handbook, and works the engine-failure checklist as the plane glides toward the river. Those lists verify conditions, and nobody wants improvisation in them.
A custodian checklist is the other kind. It does not verify. It opens. It is a model conversation, and the real one begins when she says something the model did not expect. The danger is that a tool that works smoothly stops being noticed, my checklist just as much as her inbox. You look through it, at the next line, instead of at the person.
A Friendly Reminder
Use the checklist. It is there for good reasons. Then add a few questions of your own at the end of it: Where did I miss a follow-up? What didn’t quite make sense? What seemed subtly out of the norm? And one more thing, which the desk drawer taught me: where does she keep the things that matter to her, and have I asked her to show me?
