Companies around the world have rapidly adopted video conferencing as an important tool to maintain communications and workflow during the COVID-19 pandemic. While many people had never heard of Zoom a few months ago, today it’s become a buzzword of sorts. And the 200 million or so daily Zoom users represent a 20-fold increase since the start of the year. Other videoconferencing services, such as Microsoft Teams, Skype, and Google’s Hangouts, have also seen a surge in usage.
Given that any recorded videoconferencing calls fall under the rubric of Electronically Stored Information (ESI), they are subject to ediscovery, which I guess makes them ediscoverable. This means that those charged with managing ESI and/or processing ediscovery need to understand how any videoconferencing feeds are handled from both a digital and legal basis.
Digital Factors to Consider with Videoconferencing
First off, know that any video-conferencing participant can record the feed. Most videoconferencing apps allow the meeting host to record meetings, with some also allowing the host to permit others on the feed to record. Even absent such app capabilities, or permission from the meeting host, videoconference feeds can always be captured by other means, nefarious or not.
Along with knowing who recorded the feed, its location will be an important consideration with regard to ediscovery. Such recordings should fall under a company’s data retention policies, but recorded feed locations could include the device used by meeting host, other participant devices, email in-boxes, shared drives, company servers, or by the video-conferencing app company itself.
Remember also that the ESI of videoconferencing goes beyond the audio and video data. This includes metadata about meeting participants, any screen sharing, shared documents, and any side conversations among participants as allowed by the app’s chat function.
Little doubt that any ediscovery of videoconference data will uncover a lot of “I’m so bored,” and “how much longer?” messages among the side chats. Not to mention occasional compromising data, such as “Poor Jennifer,” who recently forgot to turn off her camera while using the bathroom during a videoconference.
Legal Issues Relating to Videoconferencing and its eDiscovery
Laws about recording videoconferences are complicated due to differences between federal, state, and international regulations. In multi-state and/or international videoconferences it’s often not clear which jurisdiction’s laws take precedence. While many jurisdictions apply the law based on the location of the recording device, others apply it based upon the location of the person being recorded. Consent varies as well, with some jurisdictions requiring it from all participants, and others only requiring one-party consent.
Perhaps the best means of addressing any such competing jurisdictional rules is to comply with the strictest recording laws. At the least, provide notice about the recording and get consent from all parties.
With regard to ediscovery, treat recorded videoconferences just like you would with all other ESI. If sought for a case, Rule 26 of the Federal Rules of Civil Procedure will dictate whether it is subject to ediscovery. To refresh, Rule 26 requires that the ESI falls within the scope of the case, and if it is proportional to the needs of the case.
Scope means that the requested data is relevant to the outcome of the case and is not privileged. Poor Jennifer would undoubtedly argue both relevance and privilege, should the recording of her videoconference be subject to an ediscovery request.
If scope passes muster with the court, the proportionality is then addressed according to six factors:
-Issues at stake importance
-Amount of information
-Resources needed for access
-Degree of importance such ediscovery will have in case resolution
-Costs versus benefits of the proposed ediscovery
That’s the bare bones of what you should know about planning and processing ediscovery in relation to recorded videoconferences. And during your next videoconference maybe remind participants that there is a “camera off” and “mute” button, should they have any need to take care of non-conference-related business during the meeting.