COVID-19 Creates New Discovery Issues in Litigation

Our world looks very different today because of COVID-19, and we will likely see the ripple effects for years to come. For litigators and clients involved in active litigation, it may seem like the biggest hurdles this public health crisis has created for your practice are the continuances and other disruptions to your current case docket. In reality, the pandemic has the potential to also have a significant impact on the discovery process for the disputes that will likely arise in the coming months and years ahead.

Before we began social-distancing and working from home, many of us spent time talking with our work colleagues, family, and friends in person. Since March, we have been interacting face-to-face with far fewer people, and we have exponentially increased our reliance on technological tools for work and socializing. You’ve likely seen a significant increase in email traffic and direct messages in both your work life and your personal life. Daily usage of apps like Snapchat, Facebook Messenger, Zoom, and other social networking and communication platforms is skyrocketing.

What does that mean for litigation? It means that information that was previously shared face-to-face at a co-worker’s cubicle or office is now being shared in an instant-messaging platform. It means a meeting that would have previously taken place in-person may now be taking place via Zoom – and may be recorded. Because of the way COVID-19 is changing our patterns of communication, there may be discoverable information in the future that was not previously discoverable.

Here are a few questions to consider as you contemplate how COVID-19 could create discovery-related issues in the future:

• How are you, your clients, and opposing parties using technology differently?
• What sources of information may be discoverable in the future based on these changed uses of technology?

• • Video conferences, meetings, or webinars through platforms like Zoom, GoToMeeting, Skype, or Teams
  • Ephemeral apps or instant messaging streams that may not be automatically preserved like Snapchat, Confide, Wickr, Telegram, Microsoft Lync, or Cisco Jabber
  • Use of cloud-based communication services like Slack
  • Use of text messages
  • Use of social media direct messages in apps like Facebook Messenger, Google Hangouts, Twitter, or Instagram

• Are there heightened cybersecurity or data breach issues you should be looking out for?
• Does your document retention policy account for the various types of communication and messaging platforms used right now?
• Have you clearly communicated expectations to your employees, including reminders about technology they should not be using?
• Do you have a policy in place regarding whether and when you are going to record video meetings or webinars? Have you determined whether and when it’s legal to do so? How are these recordings going to be maintained, and for how long?

In litigation, the best defense is often a good offense. How you prepare now will have ripple effects down the road if or when you end up in litigation.