Insight

Discovery in the Time of COVID-19

The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?

The Impact of COVID-19 on E-Discovery
HB

H. Barber Boone

September 29, 2021 08:00 AM

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.

Laptop with quote

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.

Related Articles

The Next Chapter


by Patrick M. Shelby

Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?

COVID-19's Impacts on Bankruptcy Procedures

Phoning It In


by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries


by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

Look for the Zoom Label


by Anne R. Yuengert and Matthew C. Lonergan

Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?

Virtual Platforms Replacing Work Interactions

Busting a Trust


by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

Compelled to Compete


by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Meeting Halfway


by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

Look Out Below


by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Is It Live . . . Or Is It Virtual?


by Adrian L. Bastianelli III, Kevin J. O'Connor, Paulo Flores and Robert S. Peckar

Mediation via Zoom is just one of the legal-industry oddities the pandemic has wrought. Here’s a cheat sheet for how to make it work for you—and some thoughts on whether it’s here to stay.

Virtual Mediation

Protecting Small Business Owners: Trial Experts Connick Law LLC Notoriously Successful with Fire Litigation


by Justin Smulison

When small business owners become the target of insurance companies in fire-related lawsuits, hiring a firm with a reputation for understanding the science of fire suppression trials can save their livelihoods.

Gold Indoor Sprinkler Heads on Red Background

The Employment Pandemic


by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

"Lawyer of the Year"


Texas "Lawyer of the Year" 2022

Charla Truett

Immigration Law

Dallas/Fort Worth, TX

2022

Hybrid Work: Coping with Compliance Consequences


by Gregory Sirico

Communications platforms like Webex by Cisco, Zoom and Microsoft Teams are more popular than ever in the age of hybrid work, but are firms risking compliance for convenience?

Compliances Issues with Hybrid Work

Changes and Challenges


by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Forging Bonds, Building Business


by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Best Lawyers: Ones to Watch in Canada 2023


by Best Lawyers

The year 2023 marks the second edition of Best Lawyers: Ones to Watch in Canada, highlighting professionals earlier in their legal careers all across Canada.

Blue background with white stairs formed out of lines

Announcing the 2022 Best Lawyers in Canada™


by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

All Eyes to the Ones on the Rise


by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch™ in America tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 "Best Law Firms" Rankings


by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Press and Publicity: How Television and Social Media Impact Legal Careers


by Justin Smulison

In recent years, with social media giving minute by minute reporting, many lawyers are finding themselves thrust into a spotlight they never planned for. How are lawyers grappling with unexpected stardom, media coverage and merciless influencers?

Close up of camera at news station

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright


by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022