With many of us now working from home in response to the COVID-19 pandemic, the reality of using videoconferencing software like Zoom, Teams, and other such platforms has become a regular part of the day-to-day. This was already becoming a trend with a significant part of the workforce dispersed, but as early as February 3rd, Zoom CEO Eric Yuan said they were seeing record usage in response to the virus. Now with mandated shelter-in-place orders and some companies moving to a one-hundred percent remote-work model, this usage continues to grow.
So how does videoconferencing affect eDiscovery? Here are 3 Things to Consider:
Recording Laws and Jurisdictions
There are both state and federal laws in the United States around recording conversations (including electronic conversations). Most states require one-party consent, which can come from the person recording if present on the call. However, some states require that all parties to a call consent to recording. In today’s world, there are often multiple people on a call from different jurisdictions (nationally and globally), which raises additional complications.
In a white paper by Matthiesen, Wickert & Lehrer, they raise the issue of deciding on which laws apply to any given call. “Some states require the consent of all parties to the conversation, while others require only the consent of one party. It is not always clear whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws controls. A good rule of thumb is that the law of the jurisdiction in which the recording device is located will apply. Some jurisdictions, however, take a different approach when addressing this issue and apply the law of the state in which the person being recorded is located. Therefore, when recording a call with parties in multiple states, it is best to comply with the strictest laws that may apply or get the consent of all parties.”
Scope and Proportionality
Under the Federal Rules of Civil Procedure, Rule 26 determines which Electronically Stored Information (ESI) falls within the scope of the case, and if that information is proportional to the needs of the case. In other words: what information can be requested as evidence? This also applies to video and audio files.
Two points are taken into consideration when determining scope: the information requested must be relevant to the outcome of the case, and it cannot be privileged. So when it comes to recorded video conference files, they have to meet these two guidelines to even be considered within the scope of a case.
If conference recordings fall within the scope of a case, then the courts look at the following six factors laid out in FRCP Rule 26(b)(1) to help determine rulings on proportionality.
- The importance of the issues at stake
- The amount of information in controversy
- The parties’ access to the information in question
- The parties’ resources to obtain the information
- The importance of the discovery in resolving the issues
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
Collection, Processing, and Review of Videoconference Data
Knowing what you have before collection puts you a step ahead when starting the eDiscovery process, so work with your IT Director to document and understand all of the videoconferencing software your organization uses and how data from these programs can be extracted.
In a recent article by Gina M. Vitiello, shareholder in the Atlanta office of Chamberlain Hrdlicka, and Patrick Kennedy, director of eDiscovery at Andrews Myers, the authors remind us that it’s not just the audio and video data that is created during a videoconference, but other information and metadata is created as well.
“Most [videoconferencing apps] allow the recording to capture not only what the speakers on the call say, but any screens that are shared, side conversations that occur in the chat window and a full list of participants who have logged into the meeting.”
Another thing to understand is where the data resides after the call is over and how it is affected by company retention policies.
The article adds, “eDiscovery hinges on collecting the right electronically stored information from the right places. Those places can include such things as email boxes and network share drives from individuals who are involved in the suit. But as we have learned, eDiscovery professionals should also ask where meeting software file recordings are stored so those locations can also be included in the collection.”
As with any unique source of ESI, having a process in place ahead of litigation on how to collect and process this data for review will greatly cut down on roadblocks later.
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