The transition to working remotely during the last year brought about a shift in the use of a variety of videoconferencing technology and remote work applications that connect employees like Zoom, WebEx, Cisco, Slack and Microsoft Teams to name a few. Although this technology has existed for years, the COVID-19 pandemic brought about a drastic shift to this remote landscape allowing employers continuity in conducting their business and connecting with their employees. Companies must consider how the use of this technology, including the storage and retention of this data will impact eDiscovery data collection and legal holds in the future.
Courts are now beginning to grapple with discovery disputes associated with the preservation and collection of things like Zoom meeting recordings, Slack posts, and Microsoft Teams chats. A recent Court order in the case of Benebone LLC v. Pet Qwerks, Inc., No. 8:20-cv-00850-AB-AFMx (C.D. Cal. Feb. 18, 2021) held that Benebone’s Slack messages were relevant to the eDiscovery requests made by Pet Qwerks and therefore discoverable. The court ruled that “requiring the review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case- if the requests and searches are appropriately limited and focused.”
If Courts are inclined to find that electronically stored information (ESI) associated with these remote work applications are relevant to a party’s claim or defense, than businesses must be prepared to produce this information as part of their eDiscovery. Faced with the increase in use of these applications businesses need to be proactive in developing policies regarding the usage of this technology, retention and storage of data and designating who has access to this data. Having procedures in place with respect to handling electronically stored information (ESI), prior to litigation, will certainly reduce the headaches and costs associated with searching, reviewing and producing this data down the road.
The following are some practices that should be considered in preparing for future litigation and eDiscovery requests:
- There should be policies regarding the use of the application, such as when, how and on which devices the application is used. Within the scope of usage there should include a clear understanding of what devices are authorized for business use. Some employees may innocently fluctuate between using a work laptop and their personal computer. Storage of business data on any personal device will still need to be preserved as it can be subject to a legal hold or eDiscovery request. Collection of this data can be difficult if employees are using different devices and thus creating a more difficult maze to navigate in collecting and preserving this information.
- Policies should also consider the record feature of some of the remote work applications. If there is the ability to record a meeting, when should recordings be made (is there a legal obligation to do so), if recordings are made where is this information stored and who has access to this information. Even if there is no recording of the meeting, there may be data associated with the meeting that may be relevant including: date, time, participants, and duration of the meeting.
- Some of the remote work applications allow for reports to be generated. The information gathered in these reports could be helpful in determining potential custodians, timelines and other relevant responsive information.
- Most importantly there should be a clear policy regarding deletion of messages, reports, recordings and the like.
If your organization uses remote work applications it is imperative that you treat these applications and the data they create as you would email communications in the context of eDiscovery. Do you have systems in place that allow you to search, preserve and produce this data? By implementing policies and procedures relating to the use of the remote work applications, data collection and storage of this ESI may limit eDiscovery disputes and protect your company’s exposure in future litigation.