Privacy and Procedural Issues with Lawsuits in the Coronavirus Era

In the Coronavirus era, the business world is scrambling to keep pace. In navigating the CARES Act, payday assistance, office shutdowns, health and safety plans and more, business leaders are searching for answers. Litigators are also struggling to advise their clients about when and if ongoing disputes will move forward in the courts and, in some instances, whether initiating litigation carries additional concerns during this uncertain time. For example, some courts in California are completely closed, forcing litigators to come up with creative solutions to solve pressing problems where traditional solutions like restraining orders and other injunctive relief are not available. 

To complicate matters, there is no uniformity of approach. Some jurisdictions are moving forward with hearings via Zoom or telephone conference while others leave it to individual judges to make operational decisions. Amidst this chaos, questions arise about the safety and security of the technical resources available to carry on with hearings, depositions, client meetings and other matters routinely handled in person, and their attendant risks. With that in mind, here are some practical tips:

• Get comfortable with the popular videoconferencing platforms. COVID-19 has accelerated the adoption of meeting software, but no one program has developed a market dominance. The following platforms are being used for hearings, depositions, mediations, and other matters across the country: Zoom, Cisco WebEx, Skype, and Microsoft Teams. Others available include: GoToMeeting, join.me, and even Apple’s FaceTime. While Zoom has great collaborative features and has quickly become popular with courts (which are open to the public and therefore may be less focused on the potential for public intrusion into such conferences), other types of non-public proceedings will undoubtedly weigh security concerns more heavily into the determination of which platform to use.

• Learn the privacy limitations and security measures available. Security and privacy concerns are evolving as new exploits are discovered and videoconferencing platforms race to update their software. Give some thought about the nature of the information to be communicated. In some circumstances, perhaps when dealing with trade secrets or sensitive health information, the risk of data breaches and potential HIPAA violations may outweigh the virtual meeting need. While certain platforms may claim to be HIPAA compliant, there is no certainty as to compliance as the extent of security risks on many platforms remains an unknown. When a meeting is warranted, there are at least a few measures that can be used on most platforms to address some security and privacy issues:
  
  
  • Implement strict host controls such as requiring the host to join before the video meeting begins;
  • Require a password for joining the video conference and make the password unique;
  • Carefully control screen sharing capabilities;
  • Use waiting room options if available, where participants first join a separate call and must wait for the host to authenticate them before they can join the meeting;
  • Consult with IT personnel in advance.

• Understand Court procedural steps to avoid admissibility problems. At the beginning of every video deposition, counsel should stipulate on the record to the admissibility of the testimony. For example, counsel should consider stipulating to (1) the taking of the deposition by video due to social distancing protocols, (2) the propriety of the oath taken by the deponent, and (3) that counsel will not raise any objection to the admissibility of the testimony on the basis that the oath was given remotely or taken in this remote video format.

• Know procedures for introducing exhibits in your court and on your videoconferencing platform. During the shift to virtual hearings, many courts are issuing procedures for introducing exhibits during videoconferencing and some are changing their filing procedures. For example, Dallas County Courts have recently published an order addressing this issue. In conjunction, learn how to effectively introduce exhibits using your particular videoconferencing platform, which will likely involve using the screen sharing function. Coordinate with the court reporter in advance where possible for a trial run. Close out of all programs other than exhibits so that no notifications pop up while you are presenting an exhibit. This is especially true for email. With screen sharing, an email pop up could risk inadvertent disclosure of privileged communication or work product. Take your time and do not panic if you run into technical issues. For depositions, share the exhibits with the court reporter and opposing counsel before the deposition begins.

In summary, it is important for companies and their attorneys to learn the best practices for protecting their privacy and security now in order to mitigate their risk of suffering negative impacts from the coronavirus. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization. 

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.