What Is A Custodian? Web's Most Asked Questions

When I first started a while ago to write on LinkedIn, I never really did it with any popularity contest in mind. I have to admit, when I looked at blankly at the screen, I had the realisation that writing is tough.

Suddenly a flash of inspiration came... I'll answer the most frequently asked questions on Google... about eDiscovery. So far I've covered Litigation Holds, eDiscovery and Digital Forensics.

Note: I am broadly following the US definitions, as it's where it's most used in the context of litigation.

What Is A Custodian?

The term "custodian" is defined as "a person who has responsibility for or looks after something". I remember being confused starting my first job at a law firm, not having studied law. I recalled that in some american TV shows, custodian was also another name for a janitor or cleaner. There was something in the back of my mind that heard Custard-ian too. I wasn't quite sure what it was. And I felt embarrassed to ask.

It then became one of those painful situations when you've spent far too long working there to ask what they really meant, because you'd seem wildly stupid, having spent 6 months working on productions for 'custodians' not really understanding the concept. Turns out no-one else knew the legal definition either...

When we reach into the terminology bandied about by Litigation Support and eDiscovery bods, the term is used interchangeably with the more explicit "ESI Custodian", or "Data Custodian". This Law.com article had a relatively good definition:

"The term commonly used to describe an employee or other person or group with ownership, custody, or control over potentially relevant information. For example, an individual custodian’s electronically stored information (ESI) usually includes their mail file, whereas a group custodian’s ESI may include a shared network folder"

I said..... What Is A Custodian?!

Ok, ok, many people have chastised me for not simplifying my writing and keeping it simple. So for those who only have the attention span of a modern day superficial internet consumer, click this link and move on to some interesting animal facts.

For those who'd like some addition colour, This excellent (but slightly dated) article from Morgan Lewis, begins to explain in more detail what we mean by a "custodian" in an eDiscovery context. And Rule 34 and 35 of the FRCP (the US Federal Civil Procedure Rules), mentions the phrase "possession, custody or control".

In eDiscovery, we refer to 'custodian' as the individual who is in "possession, custody or control" of evidence (say an original signed document or an email).

The Electronic Discovery Reference Model, the 'de facto standard' model of the stages in the eDiscovery process refers to a custodian as:

A common element within each e-discovery Phase which refers to the individual(s) responsible for data types or repositories for a given entity. Individuals in possession of data that is potentially relevant to a case. 

So. The End.

Possession, custody or control

If you're still with me, we get to see why this concept becomes less easy to define. We still don't really know what a custodian is. The above is fine at a high level. But let's take a couple of examples, using Fred Jones, a contract negotiator in Procurement for ACME Inc.

1. Fred Jones personal leather bound notebook. - Quite simple really. Fred, who owns the notebook, can be said to be in possession, custody and control of that notebook. The custodian therefore is Fred Jones.
2. Fred Jones Slack Message to the Procurement Team - Well, Fred is the Author. But the concept of possession is a grey area. It's on a group message board essentially. And all the members of the team could have read it. From the logs you can probably ascertain which ones. But it could be said that Fred isn't taking care of this message, or in possession of it. He might not even be in control of it. Perhaps he can't export it, delete it or edit it. In this situation you might chose that the "Procurement Team" is the custodian. Or perhaps it's the "Slack Collaboration Tool". Or the "Slack Administrator".
3. Fred Jones as joint contributor to a Contract stored in SAP Ariba Contract Managment Life-cycle system - In this case, Fred Jones is a partial author, recipient of the finalised version and possibly in possession, custody or control. However it is probably sensible to list the metadata about all of the contributors, authors, recipients separately, and simply refer to the Custodian as "SAP Ariba Contract Managemen Systemt".
4. Fred Jones's emails stored on O365 on a server in Dublin. Now when we think about a custodian, we're thinking more about Fred Jones. But the IT Department administers the server in Dublin. Microsoft owns and runs the systems and likely has access or could gain access to the email. So depending on approach, the 'custodian' could be the company, ACME Inc, the third party, Microsoft, the mailbox owner "Fred Jones" or potentially any number of people or systems in a chain.

Simple really. The Sedona Conference Commentary aims to clear up this lack of definition. You should take a look.

Cloud Act Cloudiness

You knew it wasn't going to be that simple. My articles rarely are. Once we start to look at modern day IT systems, "possession, custody or control" becomes a cloudy area.

Think about Fred Jones taking a photograph with his company iPhone, on top of a mountain in Switzerland. The photo is backed up to iCloud and posted on Instagram. The iCloud servers happen to be based in North Carolina. Apple could be said to be in possession, custody or control of the photograph, so could be considered a custodian. Although from a practical sense, as the subject of the litigation, Fred Jones is most likely to be deemed the witness and subsequently in most cases it would make sense to name him as the custodian of the photograph.

The Cloud Act both helps to clarify jurisdictional issues from a US perspective, but also adds levels of complexity to the concept of "custodian".

Artificial Custodians

I had made reference to systems being in the mix as 'Custodians'. And that is even more relevant as a concept with the march of Narrow AI, machine learning and general intelligence. It is plain to me that not only can a system now be a "custodian" in all senses (possessing, care-taking, controlling, creating, distributing documents and data without human intervention), these systems can also be deemed as Witnesses, a future concept that is beginning to take shape discussed in my "You Can Call Me A.I." article.

Systems own and control data, act relatively autonomously already, can be given emotions, can hide things, can lie, can cheat for reward, create their own languages, even collude.

K.I.S.S.

Obviously I'm drawing you down a path to make the point that there is a lack of definition in the terms "Custodian" and "Possession, Custody or Control". There is far more contextual meaning to terms like author, recipient, editor, contributor.

In the absence of well defined legal clarity, a combination of the Sedona Conference Commentary explained clearly by Percipient here and the EDRM definitions can be safely used to understand the eDiscovery concept as it exists in the current form.

I firmly believe though, that a System can already broadly fit into these definitions and we will soon begin to see them deemed as Witnesses in a similar way.

Has the term 'custodian' outlived it's usefulness in a litigation context?

H.T.H.

Martin.

Disclaimer: This is all my own opinion and experience and isn't necessarily reflective of the views of my current or previous employers. It may have been written by a bot. You tell me? Does LinkedIn Own this document now? Is it even a document in the traditional sense? Do you own or control this document since you have it stored in your cache and device memory?

About Martin: Over the past 17 years I've worked with Chief Legal Officers, General Counsel, Compliance Professionals and ‘Big Law’ firms globally, to create and implement systems and processes that reduce the likelihood of failure during a crisis. And eDiscovery.