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Squaring the Proliferation of Virtual Meetings—A New Threat for E-Discovery—with Organizational Data Retention Standards

Created on September 16, 2020

By Courtney Murphy, E-Discovery Attorney, Clark Hill PLC

Over the last several months, the COVID-19 outbreak has pushed organizations to either add new videoconferencing options to their technology repertoire or scale up an existing solution to accommodate much larger segments of their workforces. Now, with employees routinely holding remote meetings, it may be a good time to ask: What is happening with the data being generated by these video meetings?

Many common videoconferencing software include the ability to record; before the recent shift to work from home, how did your organization handle this option? Did you choose to record regular team meetings and project calls (or was it happening by default)? And what about meeting notes—either physical or digital—discussing potentially sensitive matters?

How an organization chooses to record and retain videoconferencing data is its business, as are the associated risks and benefits. But businesses without defined processes for managing the resulting records may face challenges in future litigation and investigations that could have been avoided with advance planning.

Recording activity like this raises three primary concerns for e-discovery and data retention:

  • Data proliferation is endemic in many large organizations, which increases risk and cost on multiple fronts.
  • Stored ESI—whether retained intentionally or incidentally—is subject to preservation obligations arising from active or anticipated litigation, and if potentially relevant videoconferencing files are lost, the organization could be subject to spoliation sanctions.
  • A single meeting has the potential to be saved as multiple files within a videoconference application, including audio and video files (which may include verbal asides, commentary, facial expressions, and screen shares) electronic documents shared in the meeting, and audio and chat transcripts—all of which are considered discoverable ESI under FRCP 34(a)(1).

Without a strategy in place that defines recording and retention policies for this data category, it represents a potential organizational risk. Videoconferencing data doesn’t have a recommended or required retention period; as your organization adopts or expands virtual meeting protocols, data retention policies may need to be revamped. And if videoconference data is incorporated into a retention policy, it should consider all potential meeting components, and should be consistently enforced.

Consider taking the following steps at your organization:

  • Set policies governing naming conventions for meeting files, custodian-directed guidelines for recording, saving, and using files, and administrative settings, including auto-deletion, to assist in organizing the data.
  • Establish guidelines delineating which record components should be generated and stored (you might not need them all).
  • Develop processes for reports that compile metrics or analytics for specific call profiles: how those reports are generated, by whom, and how they fit into retention policies.

Videoconferencing and virtual meeting tools have allowed countless businesses and employees to maintain something approaching a normal workflow during a decidedly abnormal time—but this explosion of a previously under-the-radar data type is a perfect medium for unintended consequences. Establishing and enforcing retention standards for videoconference records will mitigate some of the enterprise risk they might otherwise introduce.

Courtney A. Murphy is an attorney with 10 years of experience in the ever-evolving e-discovery space. She is committed to educating legal professionals on e-discovery topics, working to bridge the communication gaps that open up between attorneys, clients, IT professionals, and other stakeholders. She works for Clark Hill as an E-Discovery Attorney in the firm’s Pittsburgh office, where she advises colleagues and clients on the ins and outs of e-discovery, administers various software applications, and wrangles ESI on a daily basis.