Litigation Risks of Videoconferencing Tools

This post first appeared on Risk Management Magazine. Read the original article.

Seemingly overnight, the business world experienced the widespread adoption of videoconferencing technology such as Zoom, Skype, Webex, Microsoft Teams and Google Meetings to keep employees connected during the COVID-19 pandemic. As with email, text messaging and other electronic communication tools, a byproduct of the use of videoconferencing is the tremendous amount of data now being generated and stored. If not managed properly, this data could become a significant litigation risk.

While the specific features of each videoconferencing
system vary, these platforms generally allow users to configure robust storage
options, including usage reports, records of all participants, automatically
generated transcripts, and audio and video recordings. Many offer cloud-based
storage, and some platforms also allow local storage, where a copy of the data
from a videoconference can be stored on individual machines apart from the
central cloud-based repository. Essentially, terabytes of additional data may
be stored and distributed across your enterprise, creating challenges for data
collection.

In the world of litigation, the data created by
electronic communication tools is known as electronically stored information
(ESI). In significant legal cases, courts generally require that relevant ESI
be provided to the opposing party during discovery. Large amounts of ESI can
lead to a burdensome and expensive discovery process for the producing party.
On top of that, ESI can be a potential gold mine for the requesting party, as
more informal communications like email and text messages frequently provide
unfiltered thoughts and comments, often without appropriate context, which can
be damaging in the context of a lawsuit.

For example,
consider a product liability lawsuit alleging that a newly developed product is
defective. The development process involved a six-person team working for over
a year to bring the product to market. During development, the team held weekly
team videoconference meetings to discuss all facets of the project, including
every problem with the product, whether real, perceived or hypothetical. The
team members also had regular videoconferences with others outside the core
team, including vendors, contractors, consultants, other company employees and
the management team. From this relatively modest development project,
potentially hundreds of hours of video, audio and related data on meeting
transcripts, attendance and the like were generated and stored by the videoconferencing
system. 

All of this ESI may be subject to discovery in the
product liability lawsuit. If so, this data will need to be collected and
reviewed by attorneys and potentially produced for the other side. Moreover,
every word and gesture from every meeting will be available for the other side
to review and be shown to a jury. Even good-faith efforts by the team to
identify and solve potential problems along the way may be viewed as knowledge
of a problem. This could ultimately prove disastrous.

Properly managing this new wave of ESI data is
critical and should be done before you face any litigation. This requires two
main actions: 1) developing and implementing sound data retention policies that
address the vast amounts of information generated by your videoconferencing
platform, and 2) providing employee training to mitigate the risks inherent in
this growing body of potentially discoverable information.

A data retention policy is a formal policy that
addresses how your organization will maintain various business records and when
those records should be deleted. Take care to create a policy that fits your
business needs without requiring that you perpetually store every bit of
generated ESI. This requires understanding the needs of your business and the
features of the videoconferencing tool it is using. For example, every company
should consider the following questions:

  • For the specific videoconferencing platform(s) being used by your enterprise, what data is automatically stored, and what data can be optionally stored?
  • Who has the ability to control storage settings and options? Are they set by the system administrator or each user?
  • Where is the data stored?
  • What administrative tools are available through the system to automatically manage data retention? Who can control these settings?
  • What is the business value of maintaining each type of record? How long do these records need to be maintained?  Is there a business need to record most videoconferences? If so, how long does this data need to be stored?

With this information in hand, the company can work
with legal counsel to update videoconferencing use and data retention policies
to properly limit the ESI to only what is essential to the business.

In addition to data retention, effective risk management
should include updating employee policies and related training on the proper
business use of videoconferencing. It has become commonplace in litigation over
the past decade for emails and text messages obtained through discovery to
reveal startling statements that dramatically influence the outcome of a
dispute. The ease of use of these tools fosters a level of informality in
communications that can seriously jeopardize a case. With videoconferencing,
not only will cavalier statements during meetings be made available for
discovery, but facial expressions, hand gestures and overall body language may
also be recorded and played for a jury.

So not only is this vast collection of data expensive
to maintain, gather, review and produce during litigation, a moment of poor
judgment by a single employee captured during a videoconference—even when that
employee’s thoughts may not be shared by others in the room or the company’s
management—may prove damaging.

Companies should update employee manuals and provide
additional training to highlight that videoconferencing may be an important
business tool, but its convenience and ease of use should not invite foregoing
good judgment. In fact, it is important that employees exercise an even greater
level of discretion when using videoconferencing. Employees should be trained
to assume that each videoconference is being recorded and, if for any reason
they would be uncomfortable having their statements, facial expressions or
gestures played back to a jury, they should not be engaging in such conduct
during a videoconference.

Videoconferencing platforms
have been a tremendous asset during the pandemic and will likely continue to be
an important tool even after the current crisis is under control. As with other
communication tools, however, proper management is essential to help your
company reduce future litigation risks.

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