In the last few years, remote work has proliferated, and with it the discovery process has become more complicated. With work-from-home as an option (if not the norm) in many industries, company data is commonly being accessed from, stored in, and sent from more diverse sources — potentially in ways that are beyond a company’s direct oversight and control. This can be a major source of cost- and time-expense in the early stages of litigation without a centralized way to preserve, collect, and produce relevant materials. It also increases the risk of spoliation (i.e., the loss of relevant evidence) that could result in sanctions.
In a remote environment there is an elevated risk that employees will store and send company data on their personal computers, phones, or other devices. And as more organizational teams work out of separate locations, more employees are using informal chat applications like Slack or Microsoft Teams, or regular text messages to communicate about work. Water-cooler chats and in-person meetings have been replaced by chat threads, creating records of previously informal discussions. If these conversations are taking place on platforms that are outside the company’s central control, it could severely impact later eDiscovery efforts.
Ideally, a company can implement information governance and records retention policies, modify retention practices for preservation purposes, and perform remote data collections through systems managed by the company’s central IT team. But if individuals are communicating outside the designated channels or storing their information in places that are outside of company control, retaining and collecting this information becomes difficult — if not impossible. Cost and complication abound when a company must rely on its employees to implement preservation safeguards themselves and also when it becomes necessary to conduct individual device collections across a geographically dispersed pool of employees.
Remote employees are also likely to keep relevant hard copy documents in their own home and may not follow best practices when organizing their materials without the resources and oversight of the traditional office environment. A company conducting discovery collections may not know that certain materials exist at an employee’s home until it is too late.
Preservation and collection missteps can result in significant sanctions that cost the company money and weaken their position in litigation. Litigants’ discovery obligations have been found to extend to production of communications from informal chat applications1 and personal email inboxes.2 And corporations have been sanctioned for failing to produce evidence from employees’ local hard drives and handwritten notes, even where the corporate policy required materials to be saved to a central network drive instead of locally.3
What This Means for You
Companies must be prepared for remote discovery issues before any litigation begins and must have thought through how a collection and preservation policy would take place in their modern working environment. Consider the following to help ensure a smooth discovery process:
- Upgrade policies and training regarding remote work and data storage: Ensure that your policies cover what devices are authorized for work, how and where on the system employees should store business records (rather than on their local hard drives or in unsecured web-based storage), and even what mobile applications are permitted for business-related communication. Regular training on the policies are essential, particularly in a remote environment where oversight can be difficult.
- Provide company-controlled communication and document-sharing channels: Many of these risks would be greatly mitigated by maintaining central control over employee data. While central email is common, companies should also provide employees with more informal system-controlled communication channels (i.e., chat functions, phone, and voicemail) and document sharing options that are also compatible with mobile devices. Even clearly communicated policies may fall on deaf ears if the tools provided to employees do not facilitate easy on-platform communication.
- Practice eDiscovery mechanics: Prepare your IT team to implement back-end litigation hold procedures and collections. This may mean additional investments in licensing, tools, or training. For example, while many companies utilize Microsoft 365 for email and chat, their licensing package might not provide the full eDiscovery tool set. And even if the tools are available, IT teams may not know how the system must be configured to perform holds and collections. The IT team should know how to turn off automatic deletion for emails and chat platforms, how to lock or backup central file storage, how to force preservation settings to company-controlled mobile devices and applications through a mobile device management system, and how to perform collections from company controlled systems. If your IT team does not have expertise in these areas, or does not have time to dedicate to these tasks, it will be necessary to work with a trusted third-party vendor under the guidance of the legal team. It is better to ask for help at the outset, rather than conduct an incomplete or incorrect record preservation or collection.
- Update your legal-hold strategy: Ensure that your current legal-hold strategy takes remote workers into account. Include IT and key managers in discussions about litigation holds to ensure that data and documents in the custody of off-site employees is not overlooked. And if you are relying on employees to implement their own device preservation settings, make sure they are trained in how to respond to a litigation hold. If it appears that off-site data or documents may be relevant, prioritize their preservation. Materials that are outside of direct company control are the most difficult and costly to preserve in a pinch.