A key aspect of determining the appropriate scope of discovery in litigation is defining the universe of custodians whose documents will be searched. “Custodian” is 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.

Federal Rule of Civil Procedure 26(b)(1) sets the permissible scope of discovery as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” In the context of this Rule, what guidelines do practitioners have in choosing custodians and what standards do judges employ when resolving related disputes between parties? Perhaps surprisingly, judicial guidance on this issue is sparse. In a recent decision, a federal magistrate judge addressed this topic and advanced a set of principles that, similar to conclusions reached in many other recent decisions in the discovery space, expressly defers to the responding party’s decision-making processes during discovery.

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