As courts and litigants adapt to the new normal by instituting social distancing measures through remote hearings and depositions, how we preserve, collect and produce documents should not be an afterthought. While the practice of e-discovery may already be well suited to remote work given the advanced evolution of technologies available to address challenges, below are five key areas to address in the current COVID-19 environment.
1. Litigation Holds: How Are Your Custodians Communicating and Saving Documents?
Now may be a good time to check in to determine whether any additional guidance should be given to custodians and system owners, given the fact that the majority of Americans are now working from home due to COVID-19 social distancing measures. Do your current Bring Your Own Device and Employee Document policies address the different ways your employees may be communicating and saving work? They may be using platforms, such as text messaging or instant messaging services, that are not employer-provided as a matter of practicality and convenience, or saving data locally to their personal devices. Have legal hold recipients been reminded of where they should or should not be saving data? A written reminder may help protect the employer and save the cost and time required to conduct a messy collection from personal devices or platforms. Out of an abundance of caution, legal holds may need to be supplemented to include personal devices.
2. Custodial Interviews: Then v. Now
Custodial interviews can be easily conducted over the phone or by videoconference. Factor into your questions the custodian’s work-from-home environment and how that may have changed their relevant practices. Best practices still weigh against custodial self-collections; use technology to collect and narrow data for review.
3. Remote Collections: Some Challenges Remain
Technology affords us the ability to remotely access an enormous array of electronic data on servers, in cloud environments and even on personal devices without leaving the comfort of our homes. However, there are still some sources that may require physical, on-site collection (think back to the olden days of paper files). If you have media or papers that cannot be physically accessed at this time, identify them as soon as possible and consider negotiating phased discovery with your adversaries and/or the court. Make sure that those sources are adequately preserved in the meanwhile. Postpone that discovery until such a time it is safe and permissible to collect the potentially relevant data. Diligence, transparency and cooperation performed now may avert a crisis down the road.
4. Off-Site Review: Find Alternative Means of Feedback and Supervision
Vendors who are hired to collect/review discoverable materials will likely have to do this job remotely given travel bans and social distancing measures, which may last well into the future. Most vendors and review platforms are well equipped for remote work, but valuable real-time feedback from project managers given to groups of reviewers all located in a designated review center may be lost as the team learns the case, particularized privilege issues and relevant universe. Utilize calls and videoconferencing to compensate for any potential loss of communication as reviewers work individually at home. Make sure that reviewers sign remote work policies that factor in security. Some vendors offer unique security add-ons—be sure to ask your vendors about their remote review offering.
5. Data Confidentiality and Security: Protect Your Client’s Information
With attorneys, vendors and reviewers now working remotely, don’t neglect ensuring that all the ways in which you are communicating, sending, reviewing and producing discovery are secure and adequately protect your potentially privileged and confidential information from accidental or malicious loss or disclosure. It has been widely reported that data security risks have increased in the age of COVID-19. Consult competent counsel to vet vendor contracts for appropriate security and liability provisions and protect your data.