The COVID-19 pandemic nudged the legal industry to adopt virtual business practices more widely. While lawyers have rarely been early adopters when it comes to tech, the pressures of the pandemic on attorneys’ bottom line (and greater demand from clients) have forced firms of all sizes to adapt or die.
In fact, in the American Bar Association’s recent study “Practicing Law in the Pandemic and Moving Forward,” it was reported that 52% of lawyers thought that securing new business was harder or much harder than the previous year. This was regardless of age, gender, or race. To survive, law firms have been forced to accelerate their adoption of services that can be done remotely, like the e-signing of contracts, electronic billing, and virtual client meetings, among many other activities. But that’s not all…
Law firms have had to manage a three-fold pandemic-driven challenge:
- Adapt to the changing needs of the lawyers and employees who work for them—many of whom remain remote or in a hybrid work situation.
- Step up and find ways to deliver legal services that are more accessible for clients and their various pandemic-related communications needs.
- Manage an explosion in video, chat, and social communication that has become more pervasive and relevant in the practice of law.
The Zoom Boom’s Impact on Lawyers & Firms:
Digital platforms like Zoom and others have made it possible for lawyers to collaborate and become closer than ever before. With video, audio, and real-time chat, the functionality of these tools has led to greater collaboration during very difficult times.
Digital communication platforms have enabled lawyers to follow through with their mandatory continuing education requirements (CLE)—allowing them to stay on top of changes in the legal field, best practices, and technology training without taking time away from their actual jobs. Zoom and others have also been key to facilitating virtual trade shows and conferences, such as the ABA TECHSHOW and others. While in-person is typically preferred, Zoom and the like have allowed for these learning opportunities to continue.
Let’s also not underestimate the impact Zoom has had on businesses. During the heart of nationwide lockdowns, and still to this day, lawyers and their clients have been able to continuously communicate in a safe and effective way. Yes, security concerns have been top-of-mind. However, many firms have taken internal steps and outlined requirements on how to create a secure virtual environment that all parties feel comfortable with.
Digital Communication and the Proliferation of Data:
While Zoom and other platforms offer some real benefits during COVID, and continue to do so as we emerge from the worst of the pandemic, such platforms also offer significant challenges—especially when it comes to the data they produce. The Zoom platform and others like it contain video, audio, and real-time chat functionalities between participants. When you consider that some professionals are now spending 6–8 hours a workday in some form of Zoom, meeting the potential scope of the electronically stored information (ESI) generated is potentially daunting.
However, Zoom isn’t the only means of communication that has exploded in usage since the beginning of the pandemic:
Texting is the leading communication style of mobile device users, with over 23 billion messages sent daily. Unfortunately, the text messaging data directly exported from collection tools like Cellebrite is challenging to understand and quickly review. It is important to identify solutions that can render text messages in an easy-to-understand manner to accelerate time to insight.
Gadgets & IoT
The Internet of Things (IoT) refers to the network of physical objects (things) that are embedded with sensors, software, and other technologies to connect and exchange data with other devices or systems via the internet. The IoT is a vast ecosystem of over 30 billion web-enabled things (from smartwatches to doorbell cameras to smart refrigerators) that are constantly performing tasks, collecting data, and in some cases, sharing it. As these IoT devices have become commonplace, they have created a vast digital fingerprint that savvy legal practitioners are beginning to mine for ESI.
A new type of “self-destructing” short-form messaging known as ephemeral messaging is further complicating the discovery process by automatically encrypting or destroying messages to erase their digital footprint entirely. Relatively new ephemeral messaging tools like Wickr, Signal, and Telegram, some of what are aimed at businesses, have recently been involved in litigation cases. In one case, Uber v. Waymo, the use of Wickr by all engineering staff in a theft of IP case was determined to be intentionally obfuscating and led to an adverse inference.
Social media is big business, and a source of a wealth of potentially relevant ESI relating to deceptive marketing, user privacy, and corporate security, or simply general information about litigants. Organizations and their individual employees rely on social media platforms like LinkedIn, Twitter, Facebook, TikTok, and Instagram to interact directly with potential clients, raise brand awareness, and answer customer complaints. This vast digital social footprint at the organizational and individual employee level is all potentially discoverable if deemed relevant to a case. Social media requires the same consideration as any electronic evidence source and must be defensibly preserved.
Mobile devices and apps
The largest single driver for this data explosion has been the increasing ubiquity of mobile-powered business communication. With this shift to mobile, an influx of new short-form communication applications have burst onto the scene in the last decade, and now some like WeChat, WhatsApp, and Facebook Messenger boast user counts in the billions. The informal, rapid-fire, short-format nature of apps makes them a treasure trove for identifying potentially highly relevant data, but the various formats and short nature of the communication can make review more difficult.
How to find evidence today:
Understanding how your organization communicates and conducts business will enable paralegals to construct a plan to manage the burgeoning data volumes. A linear approach of throwing as many attorneys as possible in a room and going page by page through the data is no longer going to cut it. Getting the big picture of how people are actually communicating is critical and requires a deeper investigative approach than simply requesting a data map from IT. Practitioners must engage in conversations with key custodians across a variety of business functions to ensure that they understand and are collecting from all relevant communication channels.
- Ask key custodians and members of their team what tools are used to communicate.
- Prioritize key custodians’ data sources based on frequency and type of communication.
- Determine situations when certain tools may be used (work-related texts or Slack messages are often sent after hours).
- Inquire where various data sources reside (on premises, in iCloud, on backup servers).
- Determine how employees are using new data types (social communication vs. work product).
- Research what kind of licenses the enterprise has for each tool (some licenses are limited in what data is exportable).
The pandemic has rocked the entire legal community, with both lasting positive and negative effects. COVID-19 will continue to impact the legal profession and the court system, and many will have to react and adapt quickly to these changes. Those who embrace the usage of digital communications tools, along with managing the vast amounts of data they generate, will be at a massive competitive advantage.