As is the case with just about every aspect of every industry, the COVID-19 pandemic has made a substantial impact on the process of legal discovery. In general, discovery comprises written discovery (interrogatories and requests for documents) and depositions (fact witnesses and expert witnesses). Although the economy is reopening in some places and many employers are evaluating return-to-office plans, the pandemic’s effects will continue to be felt—and in some ways have altered how lawyers approach discovery in the first place.
THE IMPACT OF COVID-19 ON E-DISCOVERY
The “e-discovery” phase was already well-suited to remote work, but this is also the area that will experience the most lasting impact of the pandemic. Over the past two decades, collection of discovery evidence has steadily moved from mostly physical documents to primarily electronic ones. This shift has made electronic document review mainstream. The technology used has evolved as well, with cloud-based platforms becoming the predominant method for document review. This aspect 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, develop productions of electronic documents, and receive and review productions from other parties.
Preservation and document sources in e-discovery will be significantly altered for many years, however. Throughout the pandemic, employees have used personal and work laptops, tablets, and other devices from their homes. Importantly, they have used their phones to text about work more. As a result, there have been few paper files created over the last year-plus, and those that exist are likely not stored in a central location. Moving forward, lawyers must be cognizant of how documents have been saved and stored, as well as the methods by which 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 the documents can be obtained in discovery.
DEPOSITIONS AND LEGAL DISCOVERY
The deposition phase of the legal discovery process felt the most immediate effects of COVID-19, though they’re likely to remain short-term. Clearly, the inability to come together or travel at the outset of the pandemic made in-person depositions impossible. At first, they were halted altogether. It didn’t take long, though, for lawyers, witnesses, and court reporters to move to virtual platforms such as Zoom, Webex, and Google Meet. It also didn’t take long before videos of inappropriately dressed lawyers—to say nothing of the one who kept insisting that, contrary to appearances, he was not in fact a cat—began to rocket around the internet.
Although lawyers were quick to cope with remote depositions, a more strategic challenge emerged: how to present deposition exhibits. Most depositions involve presenting documents chosen by the deposing lawyer, but a knotty new question was how to get the document to the deponent in advance of the deposition, but not too far in advance. The deposing lawyer may not want opposing counsel to know which documents will be brought at the deposition, which could confer greater ability to intuit the potential line of questioning their client is likely to face. In a typical deposition, lawyers bring documents with them and present them to the witness only at the proper time. In a virtual deposition, they must be sent ahead of time.
This is where emerging technology came into play. Lawyers were able to avoid this problem by providing documents to the court reporter, who had specialized software with the ability to present documents electronically—and only when prompted. This enabled lawyers to keep depositions as close to the in-person experience as possible.
Preparing witnesses ahead of time also became more difficult. Preparation is easier when sitting with clients who will be deposed—a lawyer can direct them to certain documents and certain portions thereof, as well as read their body language more immediately. At the outset of the pandemic, though, lawyers had to decide if they were going to be with their client witnesses in person or remotely, in separate Zoom boxes. With greater understanding of the virus, it became possible to have 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 had certain strategic implications. When a lawyer defends a deposition, there are times when he or she may want to object or interject before the witness answers a question. Getting an objection in when separate from the witness is much more cumbersome. Lawyers seemed to overcome much of this, though, 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.
Depositions often require significant travel, and one potentially positive, longer-lasting outcome is that many legal teams now send just one lawyer instead of several to prepare witnesses and sit in to defend the deposition, or they may perform depositions entirely remotely. As lawyers more fully contemplate the need for in-person interactions, these remote options may ultimately save time and money.
HOW MOTION HEARINGS WERE AFFECTED
In many cases, disputes arise about what should be produced in discovery. Ideally, opposing counsel can reach agreement on which documents should be produced. Still, there are many times when disputes cannot be resolved without judicial involvement in the form of a hearing.
The pandemic made hearings simultaneously easier and more complicated. On one hand, many judges were amenable to hopping on a Zoom call to expedite discovery, enabling the parties to move more quickly on a given area of dispute and avoid spending time on motion, response, and reply. In other instances, remote options were not available, and hearings were postponed, causing delays in the progression of the case. Remote options are largely left to the discretion of the judge; some judges are willing to permit Zoom meetings, while others prefer in-person appearances.
As COVID-19 case numbers declined, many judges reverted to in-person hearings. More recently, however, the numbers from the Delta variant have begun increasing, leaving it unknown how courts will respond. Should they continue the trend of increasing in-person hearings, necessary coronavirus protocols could mean fewer motions able to be heard in a day, potentially lengthening timelines. Moving forward, judges are likely to require Zoom and other virtual means of communication during discovery to be dependent on the agreement of both parties, if they’re allowed at all.
UNEXPECTED BENEFITS, LINGERING QUESTIONS
In the adversarial process of litigation, remote work forced by COVID-19 restrictions necessitated adaptability, but the various technologies already in place for e-discovery were central to success. Lawyers also learned unexpected lessons: Remote work pushed counsel to think about efficient ways to communicate, prepare, and support clients. With luck, some of these lessons will carry through beyond the pandemic and open opportunities for videoconferences and more frequent remote work. Ultimately, though, the pandemic’s biggest impact on e-discovery will likely be felt in the questions it has brought forth about where relevant data can be located, who has custody, control, or possession of it, and how to deal with business-related data on employees’ personal devices and systems. How these questions—and others currently unforeseeable—are ultimately resolved will go a long way toward shaping the evolution of discovery, and much else of importance to legal proceedings of all kinds, in the years ahead.
H. Barber Boone is an attorney at Butler Snow LLP. He focuses his practice on commercial litigation issues including breach of contract, intellectual property, antitrust, trade secrets, and cybersecurity issues, as well as a variety of other types of commercial and environmental litigation. Barber’s practice includes matters with complex e-discovery issues, including handling issues relating to identification, preservation and collection of electronically stored information, managing the review and production of large volumes of documents, as well as analyzing large productions by opposing and third parties.