Like all aspects of business, COVID-19 has also impacted the legal discovery process. The discovery process in a lawsuit is generally comprised of written discovery (interrogatories and requests for production of documents) and depositions (fact witnesses and expert witnesses). Despite the fact that the economy is steadily re-opening and many employees are headed back into the office, the effects of the pandemic will continue to be felt throughout the process and, in some ways, have altered how lawyers approach discovery.
WRITTEN DISCOVERY: WHAT IS E-DISCOVERY AND HOW HAS IT BEEN IMPACTED BY COVID?
The e-discovery phase of the legal discovery process was already well-suited to remote work. But this is also the phase that will experience the most lasting impacts of the pandemic. Over the past two decades, collection of discovery evidence has steadily moved from largely collection of physical documents to primarily collection of electronic documents. This shift has enabled electronic document review to become mainstream. The technology for that review has evolved as well, with cloud-based review platforms becoming the predominant method for document review. This portion of e-discovery was largely unchanged during the pandemic as law firms were already well-suited to assemble teams of document reviewers in different locations, collaborate effectively in the review process, develop productions of electronic documents, as well as receive and review productions from other parties.
In terms of lasting effects on e-discovery, however, preservation and document sources will be significantly altered for many years. Over the course of the pandemic, employees have been using personal and work laptops, tablets and other devices from their homes. And, importantly, they have used their phones to text about work more. There will be an entire year in which there are very few paper files, and if there are paper files, they will likely not be stored in a central location. Moving forward, lawyers will need to be cognizant of how differently documents have been saved and stored, as well as by what method information was exchanged. This will also raise questions about whether those personal devices are in the “custody, control or possession” of the company and how those documents can be obtained in discovery.
Learn more about how COVID-19 has altered the ways lawyers will approach discovery evidence moving forward here.
Depositions and the Legal Discovery Process
The deposition phase of the legal discovery process felt the most immediate impacts from COVID-19, though they will likely remain short-term impacts. Clearly, the inability to gather in-person or travel at the outset of the pandemic made in-person depositions impossible. At first, depositions were halted altogether. But it did not take long for lawyers, witnesses, and court reporters to be forced to move to virtual platforms such as Zoom, WebEx, and Google Meet. And, it was not long after that before videos of inappropriately dressed lawyers and other videos like that of a lawyer unable to turn off his cat filter circled the Internet.
Though lawyers coped quickly with remote depositions, a more strategic challenge emerged—the presentation of deposition exhibits. Most depositions involve presenting documents chosen by the deposing lawyer, but the question emerged of how to get the document to the deponent in advance of the deposition but not too far in advance. That lawyer may not want opposing counsel to know which documents will be brought at the deposition. That may give opposing counsel an advantage and greater ability to infer the line of questioning which would give their witness insight into what lines of questioning to expect. In a typical deposition, lawyers bring documents with them and present them to the witness only at the proper time. In a virtual deposition, however, those files must be sent ahead of time. This is where emerging technology was used. Lawyers were able to avoid this issue by providing documents to the court reporter who had specialized software with the ability to present the documents electronically and only when prompted. This software offered by many court reporters provided a necessary component to the deposition process and allowed lawyers to proceed with depositions as closely as they could to the in-person experience.
Preparing witnesses ahead of time also became more difficult. When sitting with your client who will be deposed, preparation is undoubtedly easier in person—you can direct the client to certain documents and certain portions of documents, as well as readhis/her body language more immediately.. However, at the outset of the pandemic, lawyers had to decide if they were going to be in-person with their client witness or remotely, in a separate Zoom box. With greater understanding of the virus, it became possible to have very limited, masked interactions, and as vaccination rates rise, more in-person support is also possible. While on the surface these issues were mostly logistical, they also presented strategic implications.
When a lawyer defends a deposition, there are times that lawyer may want to object or interject before the witness answers the question. Getting an objection in when sitting in a separate location from the witness is more cumbersome via Zoom. But, lawyers seemed to overcome much of that and were able to successfully participate in depositions remotely. The constraints on in-person interactions have helped the industry think more critically about when—and how much—in-person depositions are truly needed. Often depositions require significant travel, and a potentially positive and longer-lasting outcome is that many legal teams are now sending only one lawyer rather than an entire team to travel (if needed) to prepare witnesses and sit in person to defend the deposition. Or they may be performing the depositions completely remote. As the needs of in-person interactions are more fully contemplated, these remote options may ultimately save time and money.
Motion Hearings in Discovery: How Hearings were Affected
In many cases, disputes arise about what should be produced in discovery. Ideally, opposing counsel can reach agreements on which documents should be produced in discovery. Still, there are times when disputes cannot be resolved without judicial involvement. Those disputes are resolved through hearings with judges.
COVID-19 made hearings simultaneously easier and more complicated. On the one hand, many judges were amenable to hopping on a Zoom call to expedite the legal discovery process, thereby allowing the parties to move on faster with that area of dispute and avoid time spent on motion, response and reply. In other cases, remote options were not available, and hearings have been postponed, causing delays in the progression of the case. These remote options are largely left to the discretion of the judge; some judges are willing to allow Zoom meetings, while others prefer in-person appearances.
As vaccinations are more widely available and the COVID-19 numbers are generally decreasing, many judges are moving hearings back to in-person. But with COVID-19 protocols, that could mean fewer motions available to be heard in a day, perhaps, causing extended timelines. It appears that in-person hearings are still the preferred method. Moving forward, it’s likely that judges will require Zoom and other virtual means of communication during discovery to be dependent on the agreement of both parties, if allowed at all. If one party asks for a remote hearing, or deposition, a judge would likely require all parties’ agreement.
Unexpected Benefits and Lingering Questions
In the adversarial process of litigation, remote work forced by COVID-19 restrictions required adaptability, but the different technologies already in place for e-discovery were central to success. There were also unexpected lessons from remote work—it pushed counsel to think about efficient ways to communicate, prepare and support clients. Hopefully, some of these lessons will carry through past the pandemic and open opportunities for videoconferences and remote work. Ultimately though, COVID-19’s biggest impact on e-discovery is likely the questions it has brought to the forefront, about where relevant data can be located, who has custody, control or possession, and how to deal with business-related data on employees’ personal devices and systems.