Remote Work Brings New
E-Discovery Challenges

Whether prepared to do so or not, companies suddenly shifted to remote work in 2020 with the onset of the COVID-19 pandemic to help keep workers safe and keep business operations moving.

In the two years that have followed, it’s clear that remote work, for many, is here to stay beyond the pandemic.

According to a Pew Research Center survey released in February, more workers are choosing to work from home than are doing so out of necessity. Of more than 10,000 people surveyed, 61 percent of respondents said they’re choosing not to go into their workplace compared to 38 percent who are working remotely because their office is closed or otherwise unavailable to them.

While embraced by employees, remote work poses a number of practical challenges for companies in terms of eDiscovery. Not only are workers more spread out, but they’re also frequently using a mix of personal and work devices to do business, as well as using more workplace collaboration tools like Slack and Microsoft Teams.

Each of these provides its own headaches for legal teams when it comes to ensuring company data is properly preserved so that it may be collected and produced for discovery.

In 2021, eDiscovery software developer Hanzo and the Association of Certified E-Discovery Specialists concluded in their Collaboration Data Benchmarking Report that increasingly, collaboration platforms and channel-based messaging systems like Microsoft Teams and Slack are replacing traditional email for internal communication in companies.

The result is that workers are more productive and collaborative than ever in the remote environment, but the shift poses new challenges for data risk management and companies’ discovery responses.

Hanzo and ACEDS noted three key observations in the report.

Their first finding is that collaboration tools are here to stay, forever changing how businesses communicate and protect their data.

Second, they found that companies are increasingly recognizing that collaboration tools are within the scope of data that needs to be collected and preserved for discovery — it’s no longer an option to simply ignore them.

Third, companies are getting more experienced in producing collaboration data.

As the data landscape for companies changes, here are some actions corporate litigants can take to position themselves for success navigating the new normal for eDiscovery.

Create Defensible Legal Hold Processes

With workers migrating from email to collaboration tools, preserving collaboration data becomes paramount. One way that companies can defend against the potential of data destruction — and to narrow the scope of the data that must be preserved — is to iron out their legal hold processes, notifications and reminder workflows.

By promptly notifying teams that certain information must be retained, they can both reduce the possibility of spoliation, ensure that all relevant data types are preserved and minimize the costs associated with over-preserving data.

Focus on Data Governance

In addition to observing legal hold processes for collaboration data, companies must also create meaningful retention schedules and acceptable use policies to help balance the risks of using collaboration platforms with their benefits. Companies need to document their processes and communicate those processes to all employees to ensure consistency in how this data is handled and organized.

Approach Data Preservation With Efficiency and Security

Whenever possible, preserve data in-place rather than relocate the data to a separate storage location, and target collections to only gather the data needed, when it’s needed. Taking this approach to collection is both more secure, prevents data loss due to migration and allows the company to narrow the scope of the data actually needed for collection. Companies may also find it helpful to invest in enterprise solutions specifically designed to preserve, organize, search and collect collaboration data.

Plan Ahead for Remote Access

Aside from collaboration tools, we’ve also seen occasional hiccups in the eDiscovery process when it comes to managing data from home.

In a few isolated incidents, we’ve seen employees needing to physically come into their office to handle requests because their computers are not configured in a way that allows them to send information from their home network. It’s not uncommon for a firewall to cause problems, or for employees to need permissions to use utilities that allow them to send and receive data and documents that they would ordinarily be able to send and receive from the networks at their brick-and-mortar facilities.

Companies can work around this issue by making sure the right employees have the right permissions in advance. Otherwise, they’ll likely need to visit the office to complete a task or set up a meeting with their IT department to discuss alternative options.

Make Training Engaging

Another challenge we’ve seen is in the area of training remote workers. Earlier this year, Array completed an in-person training for a client’s new paralegals and other team members. Of a group of about 25 workers, only five were present in-person, while others joined via Zoom.

Not only is delivering the same information to workers in person and on videoconferencing simultaneously challenging, depending on the level of engagement of workers on the call, it can be less effective.

Employees can find it more difficult to ask questions when they’re on a large conference call, and when people meet remotely, there is a tendency for them to multitask, giving their divided attention to the subject matter at hand. During in-person training, in contrast, workers are expected to pay full attention, not be on their phones, check emails or perform other work.

The training ultimately proved to be less-than-effective for the client. We recommend taking steps to ensure workers are fully engaged in the training process. In instances where workers cannot be physically present, we recommend workplaces require their employees to participate in such sessions with their full attention, including appearing on camera.

Consult the Experts

If you’re having trouble with eDiscovery for these or other issues arising from remote work, don’t hesitate to reach out to a reputable eDiscovery vendor for help. eDiscovery vendors can help your company interpret, plan and consult on your most challenging projects.