The use of Zoom, Microsoft Teams, and similar communication platforms has become increasingly common in the construction industry. While these platforms can greatly facilitate communication between project participants, they potentially create a source of ESI – electronically stored information – that must be understood and considered by the businesses using those systems.

Businesses using Zoom, Microsoft Teams, and similar platforms should have policies in place to address whether and why to record video conferences, how long to preserve any recorded meetings, and retention policies for instant messaging systems. The failure to adopt appropriate policies could prove quite costly in any future litigation or criminal investigation.

Federal Rule of Civil Procedure 37(e) sets out the duty to preserve ESI and provides significant penalties for failing to do so once litigation is anticipated. It is important to note: there is generally no obligation to create ESI, such as recording Zoom or Teams meetings. At the same time, if the ESI is created but litigation is not anticipated, businesses are generally free to establish their own retention policy for that ESI. However, once litigation is anticipated, potential litigants have the obligation to preserve the ESI and, in connection therewith, to conduct a reasonable search for relevant information (to ensure its proper preservation).

Google was recently sanctioned by a federal court in In re Google Play Store Antitrust Litig., 21-MD-02981-JD, 2023 WL 2673109 (N.D. Cal. Mar. 28, 2023) for inadequately preserving communications that were exchanged internally on its Google Chat instant message system. The court in its analysis noted:

There is no doubt that Google was perfectly free to set up an internal IM service with any retention period of its choosing. . . . What matters is how Google responded after the lawsuits were filed, and whether it honored the evidence preservation duties . . . .

The court held that Google violated its obligations under Rule 37(e) because Google had a policy that Chats were automatically deleted after 24 hours. However, Google did not suspend the auto-delete feature after the litigation started, but, rather, Google – impermissibly – left it up to employees to decide what Chats to preserve.

In addition to the obligation to preserve ESI, parties in litigation have the obligation to timely review and produce that information to respond to discovery. A special master in a patent infringement case in the Northern District of Illinois recently stated in a report to the district court that he was "unsettled" by a party's eighteen-month delay in producing responsive Teams messages. The special master went on to express concern that the delay suggested the responding party may have "overlooked, ignored or withheld responsive Teams messages in discovery" and recommended further inquiry into the responding party's conduct.Deal Genius, LLC v. O2COOL, LLC, 21 C 2046, 2023 WL 2299977, at *1 (N.D. Ill. Feb. 17, 2023), report and recommendation adopted, 1:21-CV-02046, 2023 WL 2299976 (N.D. Ill. Feb. 23, 2023).

The problems with identifying and preserving, and potentially producing, relevant ESI are significant with recorded Zoom and Teams Meetings. Those recordings present unique hurdles of how to review potentially countless hours of recorded video and audio to determine what must be preserved and ultimately produced in litigation. While AI tools can be used to produce transcripts of those video conferences, those transcripts can be imperfect. The process of reviewing those meetings could turn out to be quite expensive and time consuming, including the need for attorneys or IT consultants to conduct the reviews.

According to a recent article in US Law Week, "Pandemic Zoom, Teams Surge Offers Evidence Trove to Prosecutors," May 2, 2023, the Department of Justice is targeting video communications – often from unsuspecting employees – in criminal investigations, and antitrust enforcers are pursuing copies of recorded meetings. By recording and saving Zoom and Teams meetings, businesses may be unwittingly preserving mountains of evidence for those types of investigations. This is potential food for thought when developing policies on recording and retaining video conferences.

Businesses in the construction industry should have a well-reasoned policy on which Zoom or Teams meetings to record and how long to save those recorded meetings. While there is generally no obligation to record Zoom or Teams meetings, and businesses are generally free to establish their own policies on recording and the retention of any recordings, once litigation is anticipated or started, litigants have the obligation to preserve the recordings of those meetings and to conduct a reasonable search to ensure their proper preservation. And, if those recordings are requested in discovery, a party has the obligation to timely review and produce the relevant recordings.

There is no doubt that recording project meetings can sometimes provide support or defenses in any disputes that arise on a project. However, recording and saving every Zoom or Teams Meeting – without any thought-out protocol – could prove costly and overwhelming in terms of volume of information to review, preserve and produce in any subsequent litigation.

This article was written for The Dispute Resolver and was published May 16, 2023.

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