Like the global economy, the legal industry has felt the impact of the coronavirus pandemic and continues to adjust to the new normal of clients and their employees working remotely. This seismic shift in how companies conduct their business has resulted in new and different challenges when companies must collect documents and data for litigation. We highlight below several collection concerns and provide practical solutions for addressing them in light of the changing circumstances companies now face.
- Hard Copy Documents: With increased remote work, employees create fewer hard copy documents; however, for those paper documents that do exist and require immediate collection, companies are faced with new challenges to physically collect and copy the materials. For example, the documents may require shipment from an employee’s house to the company office and subsequently to a vendor for scanning, if the employee does not have access to a secure scanner at their remote worksite. Each of these steps requires additional logistical considerations and planning. Companies and their outside counsel should also assess whether the hard copy documents must be collected now, or if they can be collected and produced after normal business operations resume. In the immediate term, employees should be encouraged to minimize the volume of hard copy documents by using electronic means to create and edit documents. Companies must also assess what hard copy documents are stored in onsite offices and what requires collection immediately, as employees may not be allowed to access those documents until they are allowed to return to work. In those instances, working with opposing counsel for an agreement or extension for those particular documents may be advisable.
- Nontraditional Forms of Electronic Communications: Every day, in-person conversations are being replaced by virtual conversations. These virtual discussions take the form of increased instant messages, emails, and use of communication platforms such as Skype, Microsoft Teams, and Slack. Use of video conferencing platforms and text messages are also on the rise. This increased volume of non-traditional ESI sources creates challenges for collection that may require additional collection tools and adjusted search parameters to capture the relevant information required for a case. Companies should also review retention policies for each of these platforms, ensure they are appropriate for the current work environment, and remind employees of all applicable policies.
- Increased Storage on External Devices: The increased volume of data combined with security concerns created by remote login and less robust security on personal wireless networks may mean companies are unable to store their electronic data in their normal secure locations. Evaluate whether collection can be accomplished through the use of Virtual Desktop Interface platforms or having employees store documents in a local folder that can be remotely accessed and collected by inhouse technical professionals or a vendor.
- Increased Mobile Messaging Content: The absence of landline telephones for many employees will likely increase the propensity for users to send and receive messages via mobile applications, which increases the likelihood that relevant data might “live” on these devices. You may need to be prepared to search and collect content not only stored on the phone’s native messaging applications but also third-party applications that purport to treat messaging content as ephemeral. Bring Your Own Device policies may need to be evaluated and adjusted as well.
During a business interruption like the coronavirus, companies should be flexible to accommodate the changing landscape, but should also have a plan. If your litigation cases are moving forward uninterrupted, engage e-discovery counsel with the capability and resources to handle the unique challenges associated with collections from a variety of remote sources.
Even if your case deadlines have been extended, take proactive steps to review retention and remote work policies and develop a collection plan for when employees return to work. These times call for creative solutions and a discovery counsel and vendor who can adapt to the changing time and deploy the appropriate resources.