An interesting article by Meytal McCoy and Victoria Murphy from Mayer Brown looking at some of the ways business methods and communications have changed based on the Covid-19 crisis, and especially what that means in an eDiscovery context.  Specifically, from a technology perspective, they focus on both BYOD and the different applications people are using to work in this new environment.

In respect of ephemeral messaging apps, which the article covers, these are already having an impact on eDiscovery, where the parties concerned are using them to communicate and where those communications would normally be part of the discovery process.

A classic example is Waymo vs Uber where Waymo accused Uber of instructing their employees to use Wickr after legal hold notices had been issued. This case was settled before a final ruling, but a preliminary ruling set out that Waymo could cite Uber’s use of Wickr as a negative inference.

As these systems become more and more prevalent and encroach on our daily business lives, then organisations need to be prepared to deal with them in an investigation, regulatory or litigation context. Therefore it is paramount that organisations build in sufficient controls and mechanisms to allow for data to be collected and analysed (if legally required to do so) - and at the very least, ensure that they are included in any eDiscovery exercise.  

In terms of BYOD, this has always been a challenge in the eDiscovery environment, not so much from a technical perspective, but from a legal one - ensuring that organisations can legally access the data contained upon them, if required.  The current working environment has probably increased the use of these as well as other home-based devices, that must now be considered in any future eDiscovery exercise.  It is another example of the continued blurring of the line that divides business and personal data.

If you would like to learn more on either of these topics, please do not hesitate to contact me.