COVID-19 and E-Discovery- How Things Are Changing

Kilpatrick Townsend & Stockton LLP
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COVID-19 has changed the world we live in. People are working from home, students are attending classes online, and all group events are handled remotely. For those of us who work in the E-Discovery field things have changed also. While we are facing new challenges, we are also finding interesting new opportunities to conduct our work more efficiently, and everything we are learning will inform our work even after the pandemic is over. 

Remote Collection

While the rest of the world made a massive pivot to working remotely in response to the COVID-19, remote collection has been a staple in the E-Discovery wheelhouse for years. The advances in remote collection tools have enabled e-discovery professionals to do their work efficiently, significantly reducing the costs associated with travel time and expenses for clients. Thus, the e-discovery world did not have to reinvent itself in view of the pandemic, but simply ramp up its best practices for remote collection, which has now become the standard means of collection of data. Legal teams are becoming more adept at conducting remote collections using tools such as Encase and Harvester or enlist the services of an outside vendor. 

Even though remote collection solves many of the discovery issues brought on by the pandemic, there are certain problems it cannot solve. For example, many offices continue to be closed to employee access, rendering devices left at the office and paper documents inaccessible to collection. Collection of paper documents or physical devices may need to be deferred until a later time and litigation timelines may need to be adjusted to account for this reality.

Information Security and Preservation

As employees transitioned to a remote model, new preservation and security concerns popped up. These concerns may present challenges for a legal team responding to discovery requests. My colleague, Starling Underwood, wrote on this very topic in a blog you can find here. For example, employees may use tools that are not commonplace in the standard office environment for communications. Using communication methods such as text messages and other instant messaging programs require significant new considerations, including whether the information is distributed on multiple servers and/or controlled by third-party social-media companies. My colleague, Russ Beets, wrote about navigating social media retention and collection during e-discovery in his article, which you can find here. E-Discovery teams need to update their methods, protocols, and tools to manage the collection process from a diverse universe of communication systems that employees now realistically use.

The pandemic has also created work-from-home challenges for e-discovery teams themselves. Data Security is always of the upmost importance but now with more managed document reviews moving to a remote model and legal teams working remotely there are additional security concerns. While working from home, the legal team must take extra precautions to guard any confidential information – including from any family member who may walk by and see confidential information displayed on the monitor. Team members also have a variety of home internet systems with different levels of security. Therefore, it is imperative that legal teams accessing e-discovery materials are using VPN or Citrix technology to add another level of security and protect the confidential information entrusted to them. 

The Bright Side – Legal Teams Turn to E-Discovery Teams for Guidance

While COVID-19 created many challenges for the legal community in general and e-discovery in particular, it is also allowing for innovation and adaption. First, the pandemic is accelerating legal teams’ adoption of cutting-edge legal technology because they no longer have the luxury of requesting boxes of documents in hard copy. While working from home, team members must rely on technology to assist in the practice of law, and e-discovery professionals are finding a receptive audience from case team members for trainings on the relevant technology. In our firm, to avoid sending and receiving data via external media, such as hard drives, and alleviate the need for team members to be in the office to handle the media, we have been relying more and more on secure file sharing sites to receive and produce documents. We have noticed that more higher level attorneys, even counsel and partners, are interested in learning how to use Relativity. They are also interested in how we can use technology to support their cases and legal strategy in innovative ways, all while cutting costs. In fact, our team is using Relativity for projects, tracking and analysis far beyond the realm of e-discovery, and clients are taking notice. Indeed, legal teams are finding new ways to work and E-Discovery professionals are helping them lead the way.

Greater adoption of technology is also leading to more sticky relationships with clients. As legal teams are learning to be more creative with their workflows, they are turning to teams like ours to brainstorm about how they can streamline projects using the technology we already have in-house. Clients benefit from this creative mindset, especially when law firms are taking the “we are all in this together” approach, offering help beyond traditional legal advice to solve COVID-19-created needs. An example may be partnering with a large bank to develop a workflow to process small-business loans using existing review technology. It would not fit the mold of a typical review, yet meets the needs of the client in a unique way.

COVID-19 Aftershocks

New litigation is emerging in the wake of the pandemic, and it will likely be a major area of practice for years to come. Lawsuits have already been filed against secondary education institutions seeking refunds of spring-semester tuition because campuses were shut down. Clients who follow legislation closely are keenly interested in how the recent omnibus spending bills affect their businesses. We can also imagine future litigation related to COVID-19 including breach of contract, safety violations, negligence exposure, labor and employment, and business interruption, to name a few. In all these matters, e-discovery departments will play a key role in preserving, collecting, and processing information, applying the best practices they honed during the extraordinary period we are living through right now.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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