March 30, 2020
There is no doubt that we are in unprecedented times. In seemingly the blink of an eye, our world changed; and ediscovery must change with it. The many steps that should be taken in this uncharted territory are set forth in the article, Key COVID-19 Considerations for U.S. Discovery and Information Governance by BakerHostetler.
Virtual offices, remote work completed on an expanding number of devices, and employee furloughs create a unique environment to which both in-house and outside counsel must adapt. Among the challenges noted in the article:
1. New teleworkers are unfamiliar with applicable policies and practices relating to corporate content.
2. There is enhanced risk of relevant information on personal devices that could be easily lost.
3. The distributed workplace may lead to increased disputes over custody and control of personal devices.
4. Individual privacy issues with virtual office environments and devices will arise.
The article goes on to note that this new reality is the perfect time to use defensible proportionality arguments. As stated, “Perfection in the discovery process is not required or possible. Reasonable and proportional efforts are.” In our current reality, the article notes that, “Courts will understand the unique challenges of this global pandemic… and the extraordinary efforts companies are making to stay in business while protecting their employees and communities.”
The key is defensibility. By ranking custodians according to their relevancy to the claims and defenses at issue, with interviews performed by attorneys to vet responses and locate (and ultimately preserve) data locations, transparency and consistency is established. Further, discovery cost projections should be created and leveraged during case negotiations. Prism’s Evidence Optix® Proportional Discovery Assessment® workflow achieves defensibility while creating a reasonable and proportional discovery strategy.