Zoom May Be Here to Stay, but Are You Ready to Produce the Recordings in Discovery?

Videoconferencing—through productivity tools like Zoom, Webex, and Microsoft Teams—has become part of the new normal. Matters that as recently as six weeks ago would have been handled by conference call are now routinely, in some cases almost exclusively, addressed in videoconferences. And while not every employee has embraced Zoom and its analogs, consensus among employers appears to be that they will continue to rely heavily on videoconferencing to conduct business for the foreseeable future.

The rise of videoconferencing.

Since the onset of the COVID-19 pandemic, I have observed clients using Zoom and similar services for all manner of important meetings—to plan and execute layoffs, to make decisions about changes to employee compensation, to consider legal risks and compliance, and even, in some cases, to communicate termination decisions to employees working from home. The upside to videoconferencing is, of course, the fact that it feels more personal and much more like an in-person meeting than does a conference call.

The problem: Technology makes videoconferences easy to record.

But here’s my concern: When using Zoom, the only thing stopping your virtual meeting from becoming a recording accessible at a later time is the click of a button. Zoom and all similar videoconferencing tools allow the organizer to decide whether a meeting will be recorded—and surprisingly little notice of recording is given to meeting participants. And it is not uncommon for digital packrats to set Zoom to record every videoconference—simply so that such recordings are available in case, at some later date, they are determined to be of some value.

Recordings of videoconferences are discoverable ESI.

Remember that, under Federal Rule of Civil Procedure 34 (and its state-law analogs), a party must produce in response to a proper request—“[a]ny designated documents or electronically stored information.” The 2006 Advisory Committee notes on Rule 34 explain that: “Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail. The rule covers—either as documents or as electronically stored information—information ‘stored in any medium’ to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” In other words, and in case there was any doubt, a recording of a videoconference is discoverable ESI. This fact leads inexorably to a host of data-management and record-retention issues.

Indiscriminate recording of videoconferences may lead to big headaches for employers.

While, as a general rule, I tend to take a less-is-more approach to employment policies and employee handbooks, the idea of an employer’s not addressing the proper use of videoconferencing technology troubles me. In the absence of a policy regarding the proper use of videoconferencing, and more specifically, the recording of videoconferencing sessions, an employer may find itself dealing with a raft of thorny issues. The following come immediately to mind:

  1. In states that require all parties to a communication to consent to its being recorded (so-called “two-party states”), a meeting organizer’s decision to record a videoconference could violate the law.
  2. When litigation arises, the employer will not know whether potentially relevant recordings of videoconferences exist, and it will not be in a position to preserve such recordings.
  3. If employees are permitted to use personal, rather than company-provided, videoconferencing accounts to conduct business-related meetings, the employer may have no way of determining whether potentially relevant recordings exist.
  4. In the course of litigation, when responding to discovery requests, there will be no efficient and cost-effective way to review recordings to determine if they are responsive—it will be necessary to watch recordings from start to finish to determine responsiveness.
  5. Assuming the employer is able to identify in litigation recordings of relevant videoconferences, it will then be left to manage the impacts of that evidence  on the claims asserted.

The Bottom Line for Employers

I do not mean to suggest that employers are using videoconferencing to confect schemes to violate labor and employment laws. That’s not my concern at all.

But consider this: Do you really want to produce in discovery in a wrongful termination lawsuit a recording of a meeting between human resources and a manager during which meeting participants are discussing the various risks, including legal risks, associated with a proposed termination decision? The meeting may be privileged, and therefore beyond the scope of discovery, if in-house or outside counsel is present. But more often than not, human resources professionals provide support on what are perceived to be routine matters, such as termination decisions, without input from or the participation of a lawyer. And the opportunities for statements made during meetings about these matters to be mischaracterized and distorted by enterprising employee-side lawyers are manifold.

While there are no easy answers—it certainly does not seem possible to prohibit videoconferencing, or desirable to prohibit recording of videoconferences in all instances—an employer’s best defense against these issues is to consider them now and to address them head on by including expectations with respect to the use of videoconferencing technology in a written policy.