Smile! You Are Being Recorded

By Brandon Vogel

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As the COVID-19 pandemic has changed the way lawyers practice law, so too has videoconferencing.

Virtual meeting platforms like Zoom, Webex and Skype  have become essential to the practice of law, for everything from meeting with clients, negotiating with opposing counsel and arguing motions.

These platforms enable meetings, which depending on the circumstances, may be discoverable in litigation and investigations, and subject to production in response to subpoenas.

The Committee on Technology and the Legal Profession has issued a new alert, “Discovery of Recordings from Virtual Meeting Platforms,” to help lawyers be aware of their data privacy and cybersecurity features and capabilities.

According the Guide to New York Evidence, Rule 4.01, evidence is relevant if: it ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the proceeding more probable or less probable than it would be without the evidence.”

Examples of situations where virtual meeting recordings may be discoverable include: negotiations conducted virtually; a meeting the buyer recorded ] and seller did not; the seller can request a copy of the recording from buyer during discovery in the litigation.

Lawyers should ask when deciding whether to use a virtual meeting platform: What cybersecurity protections does the platform offer? How long are recordings of meetings maintained by the platform and how is that data secured during that time?

Attorneys can best protect their accounts through strong passwords and two-factor authentication. Using your work email keeps data within the company rather than in a public email provider’s email portal.

The Committee on Technology and the Legal Profession is co-chaired by Gail Gottehrer (Law Office of Gail Gottehrer) and Ronald J.Hedges (Dentons USA). Mark A. Berman (Ganfer Shore Leeds & Zauderer) is the co-chair, ex officio.

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