An article by Vince Neicho of Integreon and Martin Bonney of Panoram draws attention to the sudden potential demand for retrieval and review of video data, not least the business, legal, regulatory, and privacy implications of video meetings.
In retrospect, the transition from paper discovery to email discovery was relatively painless, though it did not seem so at the time. It was not just that the medium changed; communication by email became both easy and immediate and, in the marketing jargon of the time, volumes were said to have “skyrocketed”. The focus was on ease of creation, as Microsoft and others gave us simple ways of generating and exchanging more documents. Tools appeared for archiving, collecting, and searching all this stuff, and they improved at a great rate. The existence of these tools meant that the standards expected of discovery lawyers rose with them, each advance quickly becoming the norm, at least for those with the wit to see it.
New and yet faster tools arose for creating and exchanging written information. Email seemed informal until texts came along. Almost without noticing it, we moved to near-instant means of communication, increasingly on platforms belonging to other people. If the transition seemed quick at the time, it was perhaps because we were not concentrating.
Regulatory requirements imposed new demands, forcing advances in technology. As it became a requirement to record telephone conversations, for example, so technology arose for handling the sharply-increased volumes of audio files, which were simultaneously plentiful, large, and hard to search.
Each such development caused a stir. For a year or so, eDiscovery conferences were full of whatever was the latest challenge. Each succeeding subject faded away as technology provided a solution. For the most part, it is easier to search 100,000 electronic records than 1,000 paper documents.
Then came video. To begin with, it was primarily the concern of law enforcement, partly because what is (erroneously) known as CCTV became ubiquitous, and as police officers started going out with body-worn cameras. Each hour of video took an hour to review, and that was after you have found what you want in archiving systems which were not designed for the volumes and reviewed on computers which were often inadequate for the purpose. The technology gradually improved, but technology development is generally driven by the demands of those with money, and those with money were not those with any great need to retrieve and review video data.
We saw a gradually-increasing use of video for business communication. To begin with, this was mainly fairly formal and used sparingly, not least because of the technology needed to capture and use the data. Developments were mainly in personal and informal communication, for example as people used Skype to keep in touch with their families. Microsoft bought Skype and dabbled in video communication in a desultory way, neglecting Skype while promoting the half-arsed Skype for Business (or “Skype for F*ing Up Business” as it became known).
Then came lockdown. The word “sudden” does not do justice to the take-up of video calls that bore no relation to the conventional idea of a “conference”. People turned to Skype and, increasingly, to Zoom as a substitute for meetings. A “conference call” by Zoom is easier to set up than an old-fashioned telephone conference call. We all did it, both for important business discussions and for chatter. Zoom’s users zoomed in days. Google brought its video conferencing tool Meet out of its business packages and into the free mainstream. Microsoft threw everything it had at turning Teams into an everyday business tool. Amazon ran out of headsets and webcams.
Virtual equivalents to besuited formal meetings gave way to domestic interiors in which people compromised on standards to get the work done. Court hearings were interrupted by animal noises; toddlers joined in; spouses wandered naked behind industrious home workers; people were rated for the contents of their bookshelves; lawyers shared experiences, good and bad, of remote hearings.
There was a lot going on, and very quickly. Few applied their minds to the fact that this type of communication is no less discoverable than the emails which preceded them and the paper which came before that. Fewer still thought through the implications posed by, for example, the appearance of a toddler or a nude spouse in an otherwise discoverable recording of a virtual business meeting.
Articles on how to use Zoom are about to give way to articles about the business, legal, regulatory, and privacy implications of video meetings. An early, and very comprehensive, study comes from Vince Neicho of Integreon and Martin Bonney of Panoram whose article appeared last week on the Legal IT Insider site.
Their first subject is DSARs – Data Subject Access Requests. The scope of DSARs is wide and their time limits are short. They are frequently used by dismissed employees, and many people have been and are about to be dismissed as a result of the coronavirus. You had all your meetings about this on Zoom or Microsoft Teams. Are you ready to produce the recordings? Can you find them? Were they recorded? Did you even realise that you could record them, or that one participant or the IT department might have recorded them? What appears in the video beyond the potentially disclosable material?
DSARs are just the start. Vince Neicho and Martin Bonney walk through other areas in which video recordings may be disclosable such as litigation, arbitration and investigations, and consider the implications of preservation, retrieval, redaction, analysis and review.
In a year or two, we will have cracked this problem and moved on to the next or the one after next. Just now, it may be the biggest single issue facing, or about to face, those responsible for discovery / disclosure.