How do I narrow a list of custodians in e-discovery without risking spoliation claims?

Narrowing a custodian list is a normal, defensible part of e-discovery. The risk is not that you scope down, but that you do it arbitrarily or that you stop preserving data you still have a duty to keep. The two activities are separate: preservation is broad and conservative, while collection and review can be narrowed through reasoned, documented judgment.

Preserve first, narrow second

Spoliation claims arise from the loss or destruction of information you had a duty to preserve, not from collecting fewer custodians. In US federal practice, the duty to preserve attaches when litigation is reasonably anticipated. Before you narrow anything:

• Issue and maintain a litigation hold covering everyone who may have relevant information.
• Keep the hold in place for custodians you exclude from active collection. Excluding someone from review is not the same as releasing them from preservation.
• Suspend auto-deletion and document retention routines that would otherwise destroy held data.

Narrow with documented, principled criteria

Reasonable, proportional scoping is expressly contemplated by the discovery rules. Base your custodian list on objective factors and write down your reasoning:

• Relevance to the claims and defenses — roles, reporting lines, and involvement in the events at issue.
• Proportionality — the importance of the issues, amount in controversy, and whether the burden outweighs the likely benefit.
• Data overlap — custodians whose information is largely duplicative of others already collected.

Tie each decision to evidence (org charts, interviews, data-mapping) rather than convenience.

Be transparent and iterative

Defensibility comes from process, not perfection. Where practical, meet and confer with opposing counsel about the custodian list early, and be willing to add custodians if facts change. Courts generally protect good-faith, well-documented scoping decisions and are skeptical of secret or unilateral narrowing that conceals relevant sources.

Mind jurisdiction

These principles track US federal civil practice. State courts, regulatory matters, and other countries impose different preservation triggers, proportionality standards, and sanctions. Confirm the governing rules before relying on any single framework.

For broader background, see e-discovery.