5 Things You Need To Know About Audio and Video eDiscovery

It should come as no surprise to anyone that virtual meetings and remote collaboration saw tremendous growth in 2021. Much of that growth can, of course, be attributed to the COVID-19 pandemic. In reality, it doesn’t matter all that much how the remote work revolution happened, just that it did. After the pandemic, it is unlikely that things will return completely back to the ‘normal’ of pre-COVID 2019.

The pandemic didn’t conjure a trend of remote work and virtual collaboration out of thin air, though. Both were already on the rise, the global pandemic simply accelerated the timeline considerably. In 2020, as companies were processing the results of the massive work-from-home experiment, Owl Labs released a report on the matter. In that report, half the respondents said the ability to work remotely was essential for their future employment choices. Three in four agreed that working from home had, on the balance, made them happier. Of course, it should also be noted that Owl Labs is not a neutral source: they offer virtual meeting technology. No reason to dismiss their results, but a grain of salt goes a long way.

Another meeting tool, Temasys, shares Owl Labs’ optimism. They gathered 17 statistics to illustrate the current state of their market. These statistics illustrate the exploding popularity of their field. Their optimism seems to yield results, too. Zoom, One of the major players in the virtual meeting market, has seen significant revenue growth over the past two years. With an especially big jump of around 350% growth in 2020, of course. Another major player that saw a huge rise in profile, Slack, was bought by Salesforce for a gigantic $27B.

For Legal Departments, the advent of such collaborative tools is a mixed bag. For one, the digital transformation of the Legal space has accelerated considerably over the past two years. The proliferation of virtual meetings has also raised many questions. For eDiscovery, there are two main concerns for Legal to grapple with: 

• Data growth generated by new avenues of communication
• Preservation and retention duties regarding virtual meetings 

In this article, we’ll delve into both issues, and provide you with a few pointers to keep in mind when dealing with such data. 

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Data growth 

The most immediate concern for Legal is the growth of data, both in size and scope, that comes with the increased use of virtual meeting tools. Such meetings are often recorded as either audio or video, and are thus subject to discovery under FRCP 34(a)(1). Audio and video have been subject to discovery since the beginning. With complete video/audio recordings now in the databanks, there is more material than before to sift through.

Additionally, information is often double or even triple-stored. A meeting might have a recording, while someone might also have taken minutes. Some companies store the audio and video separately to send information around quicker. A single meeting generates more data than ever before, and all of it is subject to discovery. 

Preservation and retention 

In an article about Zoom use, Farrel Fritz Attorneys agree that virtual meetings are subject to discovery. They write: “does the recording of a meeting necessarily mean the recording must be produced during discovery in a legal action? The answer seemingly is, no.” However, their reasoning seems to argue a technicality. Since ‘normal’ eDiscovery rules apply, proportionality comes into play. Of course, it’s possible to argue that gathering evidence from a recorded virtual meeting represents a disproportionate effort, but that argument is a shaky one. eDiscovery solutions, including ours, offer integrated functionality to transcribe and search such recordings.

This is where the dance of retention and preservation comes into play. In short, retention policies answer the question ‘when can we delete data’. In contrast, preservation policies dictate when data must be kept for legal reasons. For a more detailed overview of these policies, you can read more here. These policies may be adapted or expanded to include recorded meetings and what to do with them.

As the Farrel Fritz article acknowledges, amending these policies is no simple task. Adding a rule to a retention policy specifying that all meeting data should be removed won't do the trick. After all, once litigation can be reasonably expected, the duty to preserve kicks in. Farrel Fritz writes: “if a virtual meeting is recorded and, during that meeting the termination of an employee who may likely file suit for wrongful termination or discrimination is discussed, one could argue there is a duty to preserve that recording. The same conclusion may not be reached if the recording captures a meeting where nothing of substance or concern is addressed.” As with any attorney, the answer to a question is ‘it depends.’ 

5 things you need to know about A/V eDiscovery 

1. Technology enables and obligates 

When it comes to reviewing audio/video documents, the creation of transcripts can be a lot of work. According to Deloitte, a midsize eDiscovery proceeding may include up to 5,000 audio files. The development of technology for transcription is a double-edged sword. On the one hand, it makes it possible to review and include these documents that were always part of the eDiscovery dataset. The challenge of transcribing those files by hand is no longer a reasonable excuse on the basis of proportionality. 

2. Make provisions for audio and video files in your data protocols 

Besides virtual meeting tools, there are other audio or video sources that may contain vital data. Mondaq lists a few, including voicemails, recorded phone calls, and squawk boxes. Today, that list would also include virtual meetings and the like. Many retention and preservation policies mostly deal with text-based sources, however. As always, clarity is key. Adding language to the policy regarding audio and video files avoids confusion. It helps to ensure that such files are not lost when needed. This applies to both retention and preservation policies. 

3. Transform to text early on 

For virtual meetings, many mainstream tools offer a live transcription service. For example, both Zoom and Teams offer such a service. These allow you to immediately store a more searchable record that is much easier to store and keep track of than an a/v type file by itself. It is well worth exploring these types of settings. Having searchable transcripts ready by the meeting's end makes future eDiscovery efforts much easier.

4. Don’t forget about metadata 

When it comes to virtual meetings, not all meetings are recorded. However, data about those meetings is still stored in the tool. Such metadata can contain relevant information for a legal case. ACEDS, in a blog post published on JDSupra, details how this might be the case. They write: “The information that is retained for non-recorded meetings is not as expansive as a recorded meeting would be. There are many situations in which failure to retain this data could run counter to preservation obligations. (...) Depending on the litigation, a spreadsheet outlining that certain people were attending certain meetings on certain dates could be relevant. Companies need to be cognizant of the way this information is being maintained, saved, and collected to ensure they can comply with discovery obligations later.” 

5. Audio and video is not only found in meetings 

Though it is the trend on the rise, It’s important to remember that not all video content is more than meetings. Video is on the rise in general across the corporate world. According to EMC, 90% of the unstructured data generated by companies today comes in video format. Conference calls, webinars, training, marketing, executive and investor communications, sales initiatives, customer service initiatives, etc. All of these may include video components nowadays. The presence of video in addition to audio creates a few new challenges for Legal: 

• The metadata of the video is usually very short, making it difficult to ascertain the content;
• Disparate storage of various video types. Most companies that aren’t explicitly media-focused don’t have a central location where all video is stored. Which leads to videos being stored in a range of locations.
• As with audio, without a tool able to automate transcribing the video component, someone has to sit down and actually watch the video to determine relevance. This is incredibly time-consuming.

Luckily, modern eDiscovery solutions are equipped to handle both audio and video challenges. The same technology that allows non-searchable PDFs and image scans of documents to be read, OCR, has been adapted to transcribe video. In practice, that means no unlucky reviewer has to sit through hours of video in search of relevant information. 

Conclusion: non-textual eDiscovery 

As the corporate world moves away from text-based communications, Legal Departments must find ways to adapt. Through automated transcription and video OCR, modern eDiscovery tools transform such unstructured files into text. The legal department can then review the resulting text with the same ease as an email.

It is highly likely that in the near future, the capability to handle audio/video files quickly and efficiently will be a necessity for legal teams. If you want to know more about ZyLAB ONE’s ability to help you perform your eDiscovery duties, don’t hesitate to reach out.