As a result of the pandemic’s impact to the legal community, the need to address e-discovery is on the rise. Since March of 2020, working remotely became the status quo, new technologies were quickly adopted, and new practices were adopted to accommodate the circumstances. This drastically changed the landscape of how society works and plays, and this in turn has influenced many of our new e-discovery practices. In this article, Cassels’ Director of Discovery Services Rachael Chadwick explores the state of e-discovery in Canada a year into the COVID-19 pandemic and assesses which practices and procedures have worked and which ones should evolve.
The first changes were reactionary
Many organizations sent their employees home to work remotely, with little to no notice, and without the depth of planning that some organizations may have taken months to implement. That meant an immediate change to what devices employees used to work, the networks they began using, and the technologies they leveraged.
Without the time to plan (and a shortage of laptops!), many employees started using their personal computers and phones to communicate, work, and save data with little or no guidance from their employer. Employees may have encountered connectivity issues, causing them to save data locally on their laptops or devices, as a result.
In addition, employers, organizations and even some courts, quickly rolled out new collaboration technologies such as Zoom and Teams. Chats and video calls became a primary way of communicating with each other. Employees may have also started using other tools to communicate, such as text messages and direct messaging services. Indeed, more business communications may be found in these non-enterprise locations than ever before.
What does this mean for e-discovery?
For starters, new data sources have increased significantly. With employees saving data on personal devices, local drives, in collaboration tools, etc., where potentially relevant data resides has become a bit of a guessing game.
While some employees may have returned to working in the office, many have not, and others are considering never returning to the office or a hybrid of working remotely with periodic or scheduled time in the office. That means that some changes to our e-discovery workflows may need to be revised permanently, to ensure that the impact of the last year is reflected in our e-discovery practices. This is no longer a blip in our practice, but an impact that e-discovery practitioners should start to consider as a permanent change to their practice.
Consider the following:
Identification and Preservation
With the sudden onset of remote working, organizations may have been required to loosen up their information governance policies to respond to the needs of the business at that time. Organizations may have lost the knowledge of, and control of their data, making them more vulnerable to risk of spoliation. Employers may not know where their employees are saving data, especially if employees are using personal devices.
To identify and preserve potentially relevant data, it is standard practice to send detailed questionnaires to custodians in an effort to identify where and how they create and save data, as well as to have discussions with IT personnel to create a data map of the servers and determine what systems are in place. It is more important than ever in speaking with custodians to determine where they are saving data, being alive to the issue that they may not have been following the organization’s policies this past year.
Custodian questionnaires may need to be updated to include questions such as whether the custodian saved data on employer-owned laptops and phones, or personal devices, or both; and whether they saved data to the employers’ servers or on their personal drives and devices. Often the custodian questionnaire will list potential data types to help the custodian identify relevant data. The list of potential data types may need to be updated to include sources not frequently considered previously, such as collaboration chats and videos, TikTok, WhatsApp, and Facebook Messenger.
The legal hold or preservation notices may also need to be revised to reflect the new data sources and types. While some legal holds may include a broad list of document types, if there are new or distinct types of records that could be potentially relevant to the particular proceeding, they may be listed in the legal hold to ensure that they are preserved. This may be especially important for legal holds for one’s own client or IT professionals, who may not be thinking of the new data types and sources which have become more widely used this past year. It is important to ask the relevant IT professionals how collaboration tools such as Teams and Zoom, are tracked, monitored and preserved. If the chats and videos are saved, these are discoverable.
Depending on the matter, legal teams may wish to consider these new data types and sources when negotiating a Discovery Plan with opposing counsel. As with any negotiation, be prepared to respond when the opposing party requests the same of you and your client.
Two potential challenges when collecting data are its location and what type of data it is. With custodians working remotely and during physical distancing, the logistics of collecting some types of data have been – and continue to be – challenging. While some practitioners may have developed a work-around as an interim solution (such as involving a third-party to assist with the collection), a longer-term practice may need to be developed. Some e-discovery practitioners may wish to develop their own skills in assisting with the remote collection of data. That said, a third-party service provider, whose job it is to keep their skills and tools up to date, may be best suited to collect some of the newer data types and sources.
Other collection types such as forensic imaging of devices, the ability to investigate browser histories on personal devices, and the collection of deleted or transient data has become more of a challenge for e-discovery practitioners in the remote working environment. These collections may require the specialized skills of a third-party service provider; however, e-discovery practitioners need to be more aware than ever before, of these potential challenges and how to identify the sources and instruct the service provider.
One potential trend that may emerge is that data transfers via physical media such as USB keys and hard drives, which require a recipient at another location, may see a decrease in usage. In turn, data transfer portals may become the norm, which has the added benefit of tracking and logging the transfer for ease of documentation.
With the emergence of new data categories, e-discovery practitioners will need to become familiar with the management of those types. Once chats, video, audio, and instant messaging are collected, analyzing and reviewing them may become an additional challenge. Current review tools may not render these data types in a format that appears similar to the original, making it difficult to parse, search, and analyze. New ways to analyze and review these data types will need to be developed until the review technologies catch up.
While remote document review options have been available for some time, many service providers have promoted their on-site review services as being more secure and better quality due to the collaborative nature of working together in one location, under strict guidelines. With the onset of the COVID-19 restrictions, many of these service providers pivoted to offering remote document review while putting security and collaboration provisions in place. There are pros and cons to both on-site and remote document review; however, the past year may have illustrated that remote document review, if done well, may be just as effective as on-site review. When considering outsourcing document review, it is important to make inquiries about security protocols that the service provider has put into place. One key question to ask is where the individuals working on the project are physically located (i.e., inside Canada or outside of Canada) to ensure the risks of remote access are considered.
With court closures and physical distancing protocols, electronic hearings have quickly become the norm and e-discovery practitioners have supported e-hearings through developing protocols and leveraging emerging new technologies embraced by the courts. Moving forward, it is anticipated that a hybrid approach of remote and in-person hearings will prevail. There are many advantages to maintaining the option, when appropriate, to run e-hearings provided that the technology remains secure and supported by the parties. e-Discovery practitioners will need to lean in to fine tune the e-hearing protocols and emerging presentation technologies.
Now that we are a year into the pandemic, it’s time to acknowledge that some changes will stay with us into the future at varying degrees. Now is the time to start revisiting our workflows to ensure these changes are incorporated into our policies and procedures. Organizations should be reviewing their records management, information and security policies to reflect the new methods employees are using to access, create and store data. The past year has also seen an increase in security risks: remote work and the corresponding use of personal devices and home internet services, shared computers and home offices with family members leave data and devices vulnerable to cyber attacks. Bring your own device (BYOD) and remote working policies will need to be updated to ensure employees do their part to ensure secure work habits. Similarly, skills, training and enforcement may need to be developed as part of the new way of working.
In review, while the initial changes to work patterns and methods were reactive, there is no question that some of these will become permanent. Some of these changes impacted e-discovery immediately, while other changes will see their effects trickle down to e-discovery processes and practices in the near future. Now is the time for firms and legal professionals to assess the impact of what we’ve seen in the past year and apply it to our practice moving forward.