In e-discovery, a custodian is an individual or entity who has possession, custody, or control of documents and electronically stored information that may be relevant to a legal matter, and who bears responsibility for preserving and producing those materials. Custodian identification is one of the earliest and most consequential steps in the discovery process.
What is a custodian?
FRCP Rule 26(a)(1)(A)(i) requires parties to provide the name, and if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. These individuals are commonly referred to as custodians. They are central to the identification and preservation stages of the Electronic Discovery Reference Model (EDRM), as their data holdings define the initial scope of collection.
Courts evaluate custodian selection under the proportionality factors of FRCP Rule 26(b)(1), which requires that discovery be proportional to the needs of the case. Not every employee who may have touched a relevant document needs to be designated as a custodian. Instead, parties must make reasonable, good-faith efforts to identify the individuals most likely to hold unique, relevant information.
Once identified, custodians are typically placed on legal hold. Their data sources are then preserved and collected. The number and selection of custodians can significantly affect the cost and timeline of discovery, making early custodian negotiations a common topic at FRCP Rule 26(f) conferences.
"A party must, without awaiting a discovery request, provide to the other parties ... the name and, if known, the address and telephone number of each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses."-- FRCP Rule 26(a)(1)(A)(i)
Custodian costs and considerations
Custodian management has direct implications for discovery budgets and timelines:
- A 2021 Exterro survey found that the average e-discovery matter involves 15 to 20 custodians.
- The cost per custodian for collection and processing can range from $5,000 to $25,000 depending on data volume and complexity.
- Custodian interviews are a best practice recommended by the Sedona Conference for understanding data sources and identifying additional custodians.
- Failure to preserve a custodian's data can result in sanctions under FRCP Rule 37(e), including adverse inference instructions or case-dispositive penalties.
Custodians in Hintyr
Hintyr provides full custodian management at the case level. The custodians section covers all custodian workflows, including creating custodians, assigning files, and organizing documents by custodian for production.
Custodians can be created in Case Settings, during file upload, or directly from the file actions menu. Files can be assigned to one or multiple custodians, reflecting the reality that a single document may be in the possession of several individuals. During production export, documents can be organized by custodian to match the structure expected by the receiving party.