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Electronic Discovery and Content Management Discussions and Issues

The Questionnaire – the electronic discovery identification and preservation questionnaire

By the time you are ready for the questionnaire you have a good idea of the custodians and the data you need to preserve.  The questionnaire is time sensitive and should be vetted by the time you need to send it out. It is best to create a general questionnaire template that you can use for most cases.

The questionnaire has a dual purpose; preserve and identify data. We need to make sure that custodians have received, read and understood what is being preserved. Many clients like to use the email "confirmed delivery and read receipts" that are sometimes available with some email servers. This can be problem for several reasons.

  •  The custodian may have a delegate that receives and reads their email
  •  When sending to external email custodians or non-company email accounts a “received” noticed will be generated once the email has left the company email server – this issue occurs when sending to former employees and partners.
  •  The email can be changed from Unread to Read without actually been reviewed.

The best policy is to require the custodian to reply back and to acknowledge that the questionnaire has been received and understood. There are tools in the market place that can be used to accomplish this. Otherwise, you can follow up from non-responsive custodians.

The Questionnaire should have the following questions with an emphases on as much detail as possible:

  • Identify types of information, such as electronic and/or hardcopy files.
  • Storage media: workstations, removable drives, flash drives CD’s, DVD’s etc.
  • Types of email services. Custodians may email files to their personal accounts in order to access away from the office.
  • Files located on the network or cloud such as DropBox
  • Copies or archived email, such as PSTs.

A custodian may have more than one workstation and may have files on their home computers, therefore we need to explicitly ask. We need to make sure we capture the custodian's name, contact information, role, business unit date and signature.


  •  Be aware of the 25 interrogatory limit Rule 26(b)(2)
  •  The questionnaire can be considered a work product and therefore subjected to Work Product Doctrine protection (United States Supreme court ruling on Upjohn’s General Counsel questionnaire).
  •  Don’t forget to remind the custodians of their responsibility of preserve periodically.
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