I recently recorded a podcast with Ed Spencer and Jessie Prynne of Taylor Wessing as part of the firm’s Sidebar series. It was called What does evidence look like in the digital age? and was a short (only 30 minutes) survey of the things which organisations and lawyers need to consider both when giving disclosure and in anticipation of disclosure in future litigation or regulatory investigations.
We crammed a fair amount into a short time. I opened with a summary of the changes since I started in litigation – from a shelf full of files shown to me just before the expiry of a final order, through the death of IT control as computing fled the desktop, via BYOD, and into the multitude of comms apps now available to anyone.
Each stage seemed to raise apparently insuperable disclosure difficulties at the time, but was each tamed just in time for the next development. Jessie took us into the latest development – video calls as substitutes both for meetings and for ordinary old phone calls. These raise some particular issues, some less obvious than others. My own focus is on whether anyone records these calls and, if so, whether the recording can be found (or even remembered as existing) when disclosure obligations arise.
Jessie added two other points which I hadn’t thought of. One is the relative difficulty of taking notes while concentrating on the video call – having your head down and writing while face-to-virtual-face with someone else seems somehow inappropriate, quite apart from the concentration on the bare mechanics of the call. The recording, if there was one, may be the only record of what was said.
The other is the old obligation to notify another party that the call is being recorded if you might want to rely on it. Most video apps put up a message if recording is switched on, but it is not clear whether that suffices as notice. The subject will doubtless come up in a case, as will so many things derived from the last year’s working.
That subject opened up a discussion about policies and information governance. Employees were already making extensive use of the many communications apps when the pandemic separated them from each other, forcing a sudden and unplanned dependence on substitutes for just talking to each other. Video calls went from niche to everyday events, even supplanting old-fashioned conference calls. This wasn’t odd – the mechanism for setting up and initiating a simple conference call was always unnecessarily tiresome, and Zoom et al just made it easy (for most – there were exceptions). Like water finding its own level, people used whatever tool got the job done.
That was great – but what were the rules? Those responsible for record-keeping and for compliance had no time to devise policies and rules covering the use of all these platforms from widely-spread locations and multiple devices. We moved between devices, often during the same conversation, with all the ease which Apple et al had carefully engineered. How it was all to be preserved and collected was not top of anyone’s mind.
One conclusion from all this was that organisations would do well to record now how people have been working during the last 14 months, before they all go back to their offices and pick up old methods of working. Along with that, they need to devise and promulgate policies for a new environment of hybrid working – not everyone will troop back to their desks and not every employer will want them to. A policy which simply bans things may fail to recognise that the users may be more productive with their chosen apps and tools, and that the clients and other lawyers may have their own ways of working.
We talked a fair amount about how data informs timelines. I gave the very specific example of the ship whose sinking was transformed from accident to scuttling once the pictures were supplemented by metadata which shuffled them into the right sequence (see Photographs and their metadata help scuttle a shipping insurance claim). Jessie Prynne talked about the sometimes disjointed way in which collected data reaches the lawyers from different sources, modifying the narrative as missing pieces appear. It has always been the case that conclusions are provisional until you have all the evidence, but the potential sources of evidence are now many and varied.
The existence of technology to reshuffle the pieces is not a substitute for the use of eye and brain to spot gaps and inconsistencies and to see if it all hangs together as a story.
If one wanted a one-line summary of our talk, it might be “Remember to ask”. All the fancy technology for building narratives out of data is no use if you don’t find out what tools people used to communicate. Remembering to ask is not a point peculiar to lockdown, but if you don’t ask now, as people start returning to former ways, how they worked during lockdown, then they will forget, both generally and in the context of a particular contract or case. You don’t have to collect everything you know about, and you don’t have to review everything you have collected, but you can’t make proportionality decisions if you don’t know the outer extent of what exists.
I will leave the last word with Jessie Prynne. If you record the information needed to identify potential sources of disclosable data, she said – that you used WhatsApp or Zoom, for example – then you will get a better result from your lawyers, and make it easier for them to win for you.
This podcast was the last in the current series of litigation presented by Taylor Wessing. You will find the rest here. I was pleased to be asked to take part and enjoyed doing it.