Key Takeaway: A defensible Second Request response starts with getting custodian interviews right the first time. Early custodian interviews shape collection scope, timing, and defensibility. Weak interviews create delays and unnecessary expenses while missing critical data. By preparing tailored questions, examining how people work, and documenting every relevant source clearly before tight deadlines, teams effectively support a defensible collection plan.

When a Second Request arrives, the quality of custodian interviews shapes the entire response effort. Understanding the “how” of these interviews is crucial for custodian interviews that withstand scrutiny and support an efficient and defensible path to compliance. Components of a sound approach include relying on established workflows, customized questionnaires, and forensic teams with real world experience supporting Second Requests. With each of these, the details make the difference. For a broader look at how early forensic planning supports the response process, read How to Build a Defensible Second Request Playbook for Forensics.

Why Custodian Interviews Are Critical to Second Request Compliance

Upon receipt of a Second Request, responding parties face tight deadlines and heightened regulatory oversight. It is not uncommon for the government to require substantial productions within a matter of weeks, leaving case teams with limited time to identify relevant custodians, conduct interviews, collect data, and deliver defensible productions for review. Strategic decisions made early in the discovery process can have downstream consequences for cost, timing, and defensibility. Custodian interviews enable legal teams to understand where relevant information is created, stored, and shared for each custodian. Second Request scope is broad, and for many custodians, all the data they touch in their day-to-day role is potentially relevant and requires consideration, weighted against the risks of both over- and under-collection.

Custodian interviews are more than informational conversations; they are a foundational step in the discovery process that drives collection scope, strategy, and methodology. The quality of these interviews directly impacts timing and whether a legal team stays on schedule or spirals into delays and unnecessary expenses. 

Preparation Sets the Tone (and the Outcome)

The most successful custodian interviews begin with thoughtful preparation, allowing interviews to stay focused, efficient, and mindful of timing. 

Pre-interview preparation should include:

• Developing a questionnaire tailored to the client’s enterprise systems and industry behavioral patterns, with consideration for identifying non-enterprise sources like mobile devices, supplemental cloud storage, and ad hoc platforms unique to certain roles or departments.
• Providing custodians with the questionnaire in advance and informing the custodians of the purpose of the interview and what to expect.
• Reviewing custodians’ written responses and identifying any unclear or incomplete responses to ensure they are adequately addressed during the interview.
• Pre-filling the questionnaire for notetaking with any available information like custodian name, role, and notes from their written responses.
• Understanding how you will conduct interviews and the role each attendee will play.

With solid preparation, the conversation flows more naturally, the custodian is more engaged, and fewer follow ups are needed.

Best Practices for Lawyer-Guided and Forensically Informed Custodian Interviews

Legal teams should lead custodian interviews, setting the scope and ensuring questions align with legal strategy and regulatory expectations. Counsel should control the substance of questioning, including relevancy determinations, while forensic professionals support the interview by identifying, clarifying, and documenting sources of electronically stored information (ESI).

The goal of the interview should not be to explore every system in detail. Rather, it should be to gain a clear, practical understanding of how the custodian works and where relevant information resides, without overwhelming the custodian with overly technical questioning. Plain language questions, such as how documents are shared, where files are saved, or which tools are used most often, yield better results than starting with highly technical inquiries lacking context. 

Forensic support should:

• Ask targeted follow up questions to clarify where data lives and document key details needed for collection.
• Identify nuances in how systems are used, available data, and how to best extract relevant data.
• Guide the custodian through different systems to capture relevant file paths, cloud interfaces, collaboration tools, and more. 

Focus on How People Actually Work

To capture relevant data, it’s important to focus on real world behavior, not just formal policies or intended use.

For example:

• A custodian may have access to many systems but only use a few.
• Teams may use messaging tools casually for logistics or substantively for business discussions.
• Individuals may share and store files in multiple locations, but only one may contain unique versions.

Understanding these nuances helps avoid over- or under-collecting data and reduces the risk of surprises later in the process.

Ask the Right Follow Up Questions for Modern Data

Certain data types consistently require extra attention during custodian interviews:

Mobile Devices and Messaging
With hybrid work environments, teams increasingly use mobile devices for work purposes. Regulators expect clarity around text messages and the use of third-party messaging applications for business discussions. Details like make, model, operating system version, retention or autodelete settings, applications in use, and type of use (logistical or substantive) will guide collection planning.

Computers and Local File Storage
Most custodians still rely heavily on their computers, and it is important to understand whether local files contain unique data or are synced to cloud services (e.g., OneDrive, iCloud, Google Drive). Screensharing is recommended to quickly determine whether files are synced to a cloud source or local to the computer itself.

Collaboration and Cloud Platforms
Modern organizations rely heavily on shared workspaces, collaboration tools, and cloud storage, which can contain terabytes of easily accessible shared data. Interviews should identify which specific sites, channels, folders, or workspaces the custodian uses, noting the full folder path or web URL. Specificity in these discussions targets relevant data and avoids broad overcollection. 

Post-Interview: Effective Documentation 

Custodian interview notes will enable teams to plan collections, determine relevancy, and address questions from regulators. Ideal documentation is:

• Clearly organized, normalized across custodians, and easy to follow.
• Written in plain language.
• Sufficiently detailed, including screenshots where applicable, to explain collection scope without additional context.

Well-documented interview notes allow legal teams to move forward confidently and build a comprehensive, defensible collection plan.

Build a Defensible Second Request Strategy

Custodian interviews are a critical early process in any Second Request. Preparation, clear communication, thoughtful questioning, and disciplined documentation sets the stage for success. By focusing on how custodians use technology, maintaining a lawyer-guided approach, and prioritizing clarity over complexity, legal teams reduce risk, control costs, and position themselves for a more efficient and defensible response. In a process driven by volume and urgency, effective custodian interviews are essential.

Learn more about Epiq Antitrust and Competition and Forensics services.


Devon Avallone-Graves, Director, Global Investigations, Strategic Data Advisory

Devon establishes and operates defensible, efficient forensic collection workflows that enable corporate legal departments and law firms to meet regulatory and compliance obligations during government investigations, antitrust matters, white collar litigation, and internal reviews.

As a licensed lawyer, Devon combines legal knowledge with forensic expertise to assist clients in high stakes matters.