Despite the popular portrayal, both sides know all the information, documents, and witnesses that the parties may use at trial. The parties obtain this information through a process called “discovery.” Discovery is a legal process by which the opposing parties in a litigation exchange documents, witnesses, reports, testimony, and other evidence. Discovery occurs in several different methods: written questions, document requests, and depositions. Discovery is a labor-intensive process that lends itself to offices, collaborative spaces, and frequent team communication. Accordingly, discovery during COVID-19 and remote-work more generally is a complex process.
In proving a case, parties must submit evidence that proves their claims or defenses. Discovery is how parties obtain the evidence to prove their case.
Parties subject to discovery requests must produce all responsive documents and information that they control or access. COVID-19 and remote work exacerbates existing problems with discovery compliance obligations. Companies likely produce responsive information in a variety of formats and across various programs. A company might need to review documents produced in Office and GSuite, Dropbox, and other programs. The company might also need to produce messages in texts between employees, WhatsApp, Facebook Messenger, and Slack. The company may also have recordings of Zoom and Teams conference calls, telephonic conferences, and other mediums. Companies also maintain social media accounts that are additional avenues of communication with customers and for company announcements.
In short, companies are presented with immense filing and production challenges. Companies need to organize and produce this information. They also need to review the documents and other mediums for privileged and confidential information. In-house attorneys or law firms need to locate and perform all these functions while operating under the same remote conditions.
Companies are also under affirmative obligations to preserve evidence. If it is found during litigation that a company destroyed responsive evidence – even unintentionally – the company could be subject to sanctions. The sanctions can be severe up to an including restriction on the evidence it may submit.
On top of the discovery obligations, companies are also subject to privacy and data protection under the GDPR, CCPA, and similar data protection laws. These laws place strict requirements on companies to protect individuals’ data. These laws require companies to know the data they collect, where it is stored, and how it is used. These companies must also respond to data and right to erase requests from individuals.
These twin obligations in discovery and privacy places are substantial. Companies must track the data they collect, organize it in a way that is easily searched, and provide mechanisms to copy or erase it upon request. These problems were magnified during the pandemic when employees began working from home. Formerly, many of these issues might be resolved with an informal phone call or office drop-by, but now everything needs to be managed through online portals. Further, remote work dramatically accelerated the information that companies produce, further increasing costs. Companies are required to develop mechanisms that manage and predictably disposes of information.