In these uncertain times, where health concerns are our most pressing challenge, there still must remain a focus on business-related concerns. Travel restrictions caused by the health crisis are affecting the performance of a business, with remote technologies required at a level never previously anticipated.
While these technologies support the ability of many of us to work and collaborate remotely, legal departments, law firms, and government agencies must ensure continued compliance with records retention requirements, data privacy laws (like CCPA – California Consumer Privacy Act and GDPR), and other operational regulations. Also, remote technologies used to share business information could be subject to discovery requests in civil litigation, requiring legal professionals to maintain easy access to their data.
It is always recommended to conduct thorough risk assessments of new forms of communication, with any technologies evaluated for their potential impact on existing data preservation and collection obligations. However, rushing through an assessment to implement a new technology can result in unexpected consequences. The risk of data breaches, or the increased threat of data loss, are both issues that can have severely negative consequences.
For these reasons and others, many law firms have been particularly reluctant to support remote work environments. In speaking with colleagues from various disciplines related to legal information management and data governance, it is intriguing to hear about different initiatives organizations are pursuing to deal with these challenges. The subject matter experts with whom I spoke address a range of issues, offering advice and predictions regarding both the short- and long-term impact of our current situation.
Michael Quartararo, President, ACEDS and Professional Development
One of the biggest challenges I see is the lack of personal contact and networking. Many organizations, particularly sales organizations, and even law firms, rely heavily on the personal touch, the human contact element, to advance their business development. Leaders will need to adjust their strategies and find ways to make virtual contact work. It remains to be seen how successful this will be — and how receptive buyers will be. It reminds me of the 1990s when we were transitioning from paper to electronic records. We spent a lot of time then — in fact, I’ve built an entire career on — this notion of transitioning from the analog world to the digital. And so, I see a lot of challenges around this. But I’m also hopeful that we can do it and succeed.
Stephen Dooley, Director of Electronic Discovery and Litigation Support, Sullivan & Cromwell, LLP
As various services providers and solution partners go to a “work from home” model, it is important to understand their proposed solutions for remote support. When engaging in these discussions, it is good to engage your infosec and privacy advisory teams so you can mitigate any potential concerns and ensure that you have the appropriate measures in place to protect your organization and the client and their data.
Leigh Isaacs, Director of Information Governance and Records, Proskauer Rose LLP
We continue to look for ways to engage remote employees and remain focused on balancing the needs of remote working and security. For the IG/records team that has primarily always been in the office, that has meant learning the ins and outs of working remotely, along with acclimating to entirely new work and new expectations. It’s hard to predict what the new normal will look like when we can resume regular operations, but I expect that for some time we will be expected to creatively source projects or make adjustments to our strategic roadmap to align with new priorities.
Gary Kibel, Partner, Davis & Gilbert LLP
The current crisis and reliance upon remote working and video conferencing may make some companies reexamine their office utilization and travel patterns when the crisis ends. While some people have long used such tools, others are first becoming acquainted with them. They may soon realize that certain costly in-person activities are not as cost-effective when there are sufficient alternatives.
Craig Ball, Certified Computer Forensic Examiner, Craig D. Ball, P.C.
Coronavirus is the dog that ate everyone’s homework in civil discovery. Deadlines freely extended. On-site inspections won’t occur. Social distancing will slow and complicate collection. Huge volumes of business data shifted to home and portable devices. Courts at diminished capability will temper enforcement of discovery duties. It’s the Get-Out-of-Jail-Free card for producing parties, and there’s not a damn thing requesting parties can do about it in 2020.
Brad Schaffel, CEDS, Manager of eDiscovery and Litigation Support, Sullivan & Cromwell LLP
While not necessarily for my firm, I can see the challenge being how to put the genie back in the bottle. Once we have shown as an industry that Big Law can not only operate but thrive, with a remote workforce, how do you go back to normal? Clients have already been pushing their outside counsel to innovate and to reduce spend; this may hasten the changes. Also, as remote review (and the security measures that surround it) is shown to be a viable option, that will change how discovery is practiced.
Ryan Gregg, GMBA, President, Gregg Global Group
The global COVID-19 pandemic has created challenges domestically and abroad from security to operations, especially affecting brick and mortar type operations. While many companies have developed and implemented continuity plans, some types of services are more challenging to perform with the “work from home directives excluding non-essential services” mandated by local and regional governments globally. Another concern is the recent increase in the number of cyberattacks and sophisticated phishing emails with the majority of people working from home during this crisis, which each organization must address. Due to the likelihood that these mandates will likely ease and increase at certain points over the rest of this year regionally, I anticipate significant fluctuations in demands for certain services straining resources at times, resulting in staffing and other operational challenges for those organizations.
Debbie Reynolds, Founder, CEO, and Chief Data Privacy Officer, Debbie Reynolds Consulting, LLC
The flexibility needed to do remote work, to seek talent in new markets, and to upend the ”in-person” culture of legal businesses will be the new normal going forward. Organizations must embrace this concept as the new ”fact of life” to thrive in the future.
Mark Carter, CIP, IGP, Enterprise Account Executive, Ripcord
Given the environmental changes, the notion of having access to all key data becomes ever more important. As restrictions around working locations have increased in very recent times with more remote working, lack of access to data that is stored or trapped physically is starting to accelerate the need to digitize and better understand all business content.
Greg Buckles, Co-Founder, and Principal Analyst, eDJ Group
Corporate counsel has been squeezed to do more with less in the decades since we built up in-house discovery teams. The harsh reality of contingency planning for senior staff has been particularly challenging logistically and emotionally. Down in the weeds, adapting legal hold policies, protocols, and systems for global clients who have gone entirely to working remote has required technical ingenuity and hard risk vs. reality decisions.
Rob Robinson, Chief Marketing Officer, HaystackID
Not all secure remote review offerings are equal as the apparent experience a provider has in delivering and supporting secure remote review services, when viewed through the veil of branding or the halo effect of other eDiscovery offerings, may vary greatly from the reality of actual provider experience.
Doug Kaminski, Chief Revenue Officer, Cobra Legal Solutions
What’s most interesting to me about this disruption is how much it has tested our resilience as individuals and organizations. The daily pulse of life for most of us means going to an office, face-to-face meetings, and the like, so this rapid adjustment to remote work and virtual meetings is hard on our operating systems. I think this will change the acceptance of remote work in the legal profession and possibly how we think of our value chain in legal services overall.
Frank Canterino, Co-Founding Partner, Empire Discovery
Fortunately, Empire was well prepared for this situation by implementing our comprehensive business continuity plan, adapting quickly to the ever-changing circumstances. As a result, we experienced no downtime and were able to service our clients with a “business as usual” approach. In the short term, we anticipate an increase in the volume of business for companies in the legal technology space. Once we get past this crisis, we anticipate a tidal wave of litigation as a result of the pandemic.
Jason Stearns, CRM, IGP, CIPP-US, CIPM, Information Governance Program Manager, Citadel / President-Elect of the Board of Directors, ARMA International
Among ARMA members, many are grappling with both access and security concerns, as many organizations have become instant remote workplaces. Additionally, members need to maintain their certifications — and may have extra time or need a distraction. So, ARMA has published some of our best resources on our website home page and during April — RIM Month — we are offering CE publication discounts to help our community through these trying times.
Robert Smallwood, MBA, CIP, IGP, Publisher and CEO, InfoGov World Media LLC / Managing Director, Institute for Information Governance
We had held a series of successful Information Governance Summit events in major cities, but the COVID-19 pandemic has forced us to change plans. So, we have pivoted quickly to bring that training series to a unique virtual platform, which uses 3D virtual reality. We look forward to continuing to provide rich educational experiences to our audience through the use of cutting-edge technologies so that they may continue their IG training without the cost, risk, or hassle of travel.
Cash Butler, Founder, ClariLegal
There will be more downward cost pressure in the legal market coming out of this situation. Cost reduction in the form of reengineering business and operational processes that drive efficiencies will be a primary focus for organizations as we address this economic downturn. The adoption of technology, particularly software solutions that help improve and/or enable processes to be optimized for efficiency without negatively impacting quality, will significantly increase.
Opportunities will present themselves as we learn to work in the “new normal.” Out of necessity, we will see opportunities to improve business and operational processes and to adopt technologies and software to augment existing processes. I see business process improvement; software, infrastructure technologies, along with the use of consultants as helpful and important partners in the face of recession started by the pandemic. Software providers, infrastructure vendors, and consultants will be in a great position to help their clients identify areas where process improvement and innovation can drive efficiency.
Virtuous business relationships (true partnerships) that are well aligned toward common outcomes will bring organizations closer together so the legal value chain can deliver more impactful results at a lower cost. In the legal operations area, I see contract life cycle management, vendor management, case management, and other software solutions that provide task and process automation workflow software among the interesting options that will help organizations improve their legal departments and law firms.
During the crisis, organizations (in-house legal, law firms, and ancillary service providers) will be forced to adapt and adopt new and/or improved business practices and processes. We are seeing the first wave already, remote work and new communication processes becoming mission-critical to keep businesses operating. Organizations have no option but to change and adapt to our current environment. Organizations that can’t adapt to the current environment will be in serious trouble and may not survive. The change, adapt, and adopt reality goes beyond the current pandemic situation; we will all need to weather the economic realities we will face going forward.
I think the next wave of legal operations transformation will be focused on improving other critical business processes such as billing and payments, supply chain management, vendor management, contract management, and other types of operations processes that have a broad internal and external impact. Of course, we strongly believe ClariLegal remains able to assist our corporate and law firm clients and our vendor partners and is poised to help them improve their operational efficiencies, and the ClariLegal solution can and will be of help in navigating this economic downturn as well as possible.
Harry Buck, CEO, Legal Outsourcing 2.0
As we all navigate uncharted waters, we all have unique challenges. Mine includes offsetting a slowdown in business from one of our core clients by obtaining more work from another and leading business when most of the workforce is locked out from their workplace. The common solution to each is treating each of them as a discrete problem and acting as if you have encountered them before. In times of uncertainty, a leader needs to lead. They may or may not know what they are doing, but they need to be confident in the course they have selected.
Gyorgy Pados, Global Technology Lead, White & Case
Technology can be leveraged to reduce the reliance on others, web-based apps, collaboration platforms are essential to enabling multiple people in different locations to work together effectively. One of the things that proved working out well for us is that we had had setup “virtual arms” and what I mean by that is we had set up a few years back VMs in most of our offices around the globe that are dedicated resources for the Practice Technology Group that we access remotely.
These VMs are always accessible and are equipped with our typical Litigation Support toolkit installed these Virtual Arms lets us get close to the data, immediately able to action on tasks or provide support. In the situation we are in is also an opportunity to review how things are done on day-to-day operations and find ways to improve. In working remotely our teams strive towards a level of self-sufficiency. How you achieve this, daily updates to teams are really important to keep communications as regular to the norm and in line with business as usual.
Carve out a good and “steady” work-space that is your go-to for effective remote work, keep a routine business as usual schedule so you are accessible and reachable as expected. All of these will require a good deal of discipline. Along all of this, we should make an effort to maintain your teams’ connectedness by having once or twice a week team huddle-calls which are more informal just to check-in on each other how everyone is doing and assess workload across the board. In adapting to this current reality we can recognize how we could potentially reduce processes that typically require in-person interaction. This helps us look forward to the future with the lasting impact of what we learned.
Kenneth Rashbaum, Partner, Barton LLP
Exposition of weaknesses in an organization’s cyber safeguards, in that the weaknesses and resultant liability exposures have been multiplied by the increased number of people working remotely. Many of them disregard the company’s policy requirements or obligations in law or regulation or contracts with customers by, for example, logging onto WiFi or questionable reliability, failing to utilize encryption where required and using equipment that has not been scanned for malware.
Insurers are taking increasingly hard lines on coverage for COVID-19 losses, and they and brokers have defaulted to telling insureds that there is no coverage when in fact coverage may well lie. I foresee a significant wave of coverage litigation during and after the crisis, and perhaps investigations by attorneys general into the insurance industry’s practice of blanket statements regarding lack of coverage that misrepresent the fact that an insurance policy is a contract and that its text and court interpretations of that text may well indicate coverage.
Parties to contracts invoking force majeure to excuse the inability to meet their obligations. These clauses may, or may not, be triggered by COVID-19, depending upon how they are worded and the law in the particular jurisdiction. Most force majeure provisions require notice, and some require discussion regarding the impediment to performance and how the contract’s obligations will be met, if at all. Again, there will be an uptick in arbitration ad litigation over these clauses. This will pose significant challenges to lawyers because the law is fragmented among the states in this area, to the extent that a particular state has much law on it at all.