The proliferation of videoconferencing apps like Zoom and Teams has companies unwittingly preserving mountains of evidence for Justice Department investigators that neither side is equipped to process.
Defense lawyers are increasingly warning businesses against recording virtual meetings, or to destroy them if they do.
For some, that advice is arriving too late. Federal prosecutors and other litigating opponents have begun targeting video communications from unsuspecting employers. That’s when the reality kicks in that they’ve been enjoying the practical benefits of remote office technology without considering the litigation risks of holding recordings.
“My experience is that clients are either not thinking about retention of these things, or even if they are more sophisticated and are thinking about it, are really struggling with it,” said Christian Mahoney, the global head of e-discovery and litigation technology at Cleary Gottlieb.
Antitrust enforcers, for instance, are seeking meetings recorded on Zoom, a service of Zoom Video Communications Inc., and other platforms from businesses, which have retained Cleary to review and in some cases produce the data, Mahoney said.
“It’s creating a really big problem at the collection and processing and review and production phases because there aren’t tons of great solutions for this data yet,” he said.
More than three years after workplace meetings moved online essentially overnight due to pandemic lockdowns, companies are slowly reckoning with the volumes of recorded meetings in their possession.
Whether from active lawsuits, government probes, or internal investigations, the soaring costs of hiring attorneys and other vendors to scour massive files on Zoom and Microsoft Corp.'s Teams—frequently manually—are gradually becoming apparent.
Businesses are subject to legal hold mandates on employee communications when they face lawsuits or government investigations. At that point they can get sanctioned for evidence destruction.
Thus far, lawyers say it’s mostly the shrewdest companies with the highest litigation risk that are contemplating formal policies to deactivate the record feature. Or, they’re reserving it for limited exceptions when there’s a strong business justification, and then auto-deleting after set time periods.
Elsewhere, videoconferencing policies are largely not top-of-mind yet in C-suites. They’ve focused compliance priorities instead around DOJ’s recent push for companies to hand over employee texts and encrypted chats on personal devices, said Ronni Solomon, a partner and e-discovery practice co-leader at King & Spalding.
Andrea D’Ambra, a partner who heads the e-discovery and information governance practice at Norton Rose Fulbright, said executives aren’t thinking about potential liability from virtual meetings.
“They’re thinking about it as a tool that they can use to memorialize what they’re doing,” D’Ambra said.
Adding to the Problem
The popularity of virtual meeting apps is outlasting the pandemic, compounding an e-discovery dilemma that’s plagued attorneys since well before hybrid and remote work arrangements snowballed.
Skyrocketing amounts of electronic evidence seized from company hard drives and employee smartphones this century has overwhelmed DOJ prosecutors—leading to high-profile document disclosure missteps.
“I suspect as time goes on, more and more of this data” from videoconferencing app recordings “is not only going to be out there, but is going to be collected by the government through search warrants, voluntary productions, and subpoena responses,” said Jerrob Duffy, who was litigation chief at DOJ’s criminal fraud section through December.
“Then the question becomes what resources the government has available to review and extract the data,” said Duffy, now a partner at Squire Patton Boggs. It’s “a substantial source of data and risk factor in data collection that is not adequately extracted in some instances.”
AI solutions can help, but available automated tools offer imperfect transcription services that often still require someone to watch videos while reviewing accompanying chats, in order to filter relevant material, attorneys say.
“I do think that it’s in the long run going to add to the volume of discovery, especially in white-collar investigations,” said Ronald Wright, a criminal law professor and associate dean at Wake Forest Law. “The challenge is going to be that you’re looking for a needle in a haystack. The number of times where there’s a recorded meeting and it has actual evidence I would imagine is going to be quite small.”
DOJ didn’t provide a comment.
Off-the-grid chats on disappearing platforms such as Signal and Telegram—a key DOJ collection priority—are considered the more common venue where misconduct gets discussed. By contrast, Zoom and Teams calls don’t tend to encourage candor, particularly when employees know they’re being recorded.
But when pursuing cases against corporations or executives, demanding virtual meetings will still be a must for DOJ, said Zachary Hafer, the former criminal chief at the Boston US attorney’s office.
“As a prosecutor, you would love to have recordings of Zoom and Teams meetings,” said Hafer, now a partner at Cooley. “The combination of audio and video is the most powerful evidence you can have in court.”
The actual wrongdoing may never come up in a recording, but even a seemingly innocuous training video can be vital in building a theory at trial.
When “the government is contemplating charges against a corporation, so often the company’s compliance policies and procedures and trainings come under the microscope,” Hafer said. If recorded compliance trainings “leave a lot to be desired, that would be something a” federal prosecutor “would be very interested in seeing.”
The government’s motivation to compile videoconferencing evidence should compel more preventative measures, lawyers say, even though many have yet to see a coordinated DOJ strategy specifically demanding Zoom and Teams recordings.
E-discovery specialists noted a common theme among clients: Companies keep recordings for employees who can’t attend a meeting, even though they could easily be briefed by a colleague instead.
Another recurring issue is businesses are “often very decentralized in terms of where those recordings are being stored, who is storing them, how long they’re storing them,” said Julie Anne Halter, a partner at K&L Gates where she coordinates the e-discovery analysis practice.
She’s urging clients to “bring those technologies under one comprehensive umbrella” so that when an “investigation begins, they know exactly where that data is” and “can collect, review it, and produce it if needed quickly.”
More companies will become aware of the threats of preserving Zoom and Teams meetings as pandemic-era DOJ investigations go to trial. It’s usually only at that stage, years later, where signs of disclosure failures spill into public view.
Meanwhile, Cleary Gottlieb’s Mahoney is negotiating with DOJ attorneys over the necessity, volume, and format of virtual meeting productions. It’s an effort that may mitigate costs for his clients and hardships for prosecutors.
“Think about how you organize it, because I can tell you when we’ve had to go get it, we’ve had to get a lot more than we actually need,” Mahoney said. “Oftentimes it’s just this undifferentiated repository.”
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