As the pandemic continues and businesses adapt to the realities of virtual workforces, the “Zoom-Bombing” pranks housemates played on one another are a thing of the past.* Rather, we now must confront the discovery implications this virtual shift presents. For example, the increased use of virtual platforms, replete with recording features, may expose a litigant to discovery obligations beyond what it cares to share.
Virtual meeting platforms such as Zoom and Microsoft Teams allow for the recording of meetings. However, does the recording of a meeting necessarily mean the recording must be produced during discovery in a legal action? The answer seemingly is, no. Rather, the typical rules of discovery apply: is the recording relevant to the claims at issue in the litigation? Would producing such things be proportional given the allegations? And so, recordings of virtual meetings are subject to the same discovery rules as would apply to any electronically stored information (“ESI”).
But, what about the duty to preserve the recordings? In New York, the duty to preserve is triggered when a lawsuit is reasonably foreseeable. And so, whether a Company must preserve such recordings may require a case by case analysis. In other words, if a virtual meeting is recorded and, during that meeting the termination of an employee who likely may file suit for wrongful termination or discrimination is discussed, one could argue there is a duty to preserve that recording. The same conclusion may not be reached if the recording captures a meeting where nothing of substance or concern is addressed.
Given the potential for such recordings to be relevant, and the desire to avoid discovery failures, entities should revisit existing document retention policies to account for the realities of the last 10 months generally, and recordings of virtual meetings, specifically. Entities should consider whether virtual meetings may be recorded; if so, under what circumstances; and whether, or for how long, such recordings will be retained.**
***A special thanks to Jay Sawczak, an associate in our Commercial Litigation Department, for his contributions to today’s blog.