Readers familiar with only one contemporary topic of discussion are well familiar with COVID-19. As we suffer through the virus, TV coverage of its effects and governmental responses (in place and under consideration) to it is constant. The numbers of coronavirus sufferers and the number of their deaths in particular, projections as to whether the virus will spread or diminish, and other consequences of the virus are discussed like major league sports' scores, the discussions in part a substitute for sports coverage, as no professional sports are being played while the virus looms over us. In many locations, all "nonessential" businesses have been closed to the public and activities within the business locations prohibited.

The shutdowns in the legal world are many. In many locations, no courts are open, no documents may be filed, and deadlines for filings and the production of materials, such as discovery, have been suspended or substantially pushed back. Many law offices are closed.

Innumerable articles have been written about the impact coronavirus has had and continues to have on the workplace. The articles have been written from the point of view of the workplace owner, its employees, its clients and society at large. Thus, many pieces have been written about where counsel at law firms and in-house counsel work, how they work, how they communicate with clients and each other and the impact of the changes needed to adjust to working in a world where, basically, everyone is confined to their homes.

In this month's article, I discuss workplace adjustments brought on by the coronavirus. In particular, we will examine the contrast between the pre-coronavirus articles, which focused upon the problems arising from the changes in the workplace brought on by the new, numerous digital tools, and the current articles, which discuss how those tools can allow for work to continue without issues even when employees and clients cannot meet in person. We will also examine how the pre- and current-coronavirus articles differ in how they describe the ability of counsel and others in the legal workplace to manipulate the aforementioned digital tools, with the pre-coronavirus articles worrying about how an older generation of counsel and support personnel can work with computers, while the latter articles simply assume that the current generation, born to work with digital tools, has no problem in manipulating these tools regardless of whether they are in counsel's or IT support's home, within the workplace but manipulatable from home, and so on.

Pre-Coronavirus Articles

Pre-coronavirus articles were written in the "Bad Old Days." Then, everything in the digital world was measured by its cost, which is no different than now, save that what was considered higher costs then are now not looked at so negatively.

Articles looked closely at both internet technology and e-discovery. Both topics were looked at independently and as one influenced the other. Typical articles focusing upon IT discussed how to design IT to aid in the production of e-discovery. To pick one area of discussion as an example, articles focused upon IT backups, such as large servers and cloud storage as offered by vendors. The benefits of such storage, as emphasized in the articles, were that, in daily usage of IT, should a problem arise with the principal location of data—the server routinely used, for example—the IT system could immediately cut to the backup and allow for maintenance of the principal backup without disturbing the everyday usage of IT. Similarly, should e-discovery need to be produced, the e-discovery vendor or in-house IT personnel could make a forensic image of the backup, process the data, search and review the data (using in-house personnel familiar with the case or a group of professional reviewers, both of which might use AI to do the first-round search), and produce all responsive data (redacted as needed), all without disturbing the daily use of the IT system.

In the vast majority of the aforementioned articles, all of the technical issues were examined through the lens of cost. How, for example, can one show a chain of custody for digital files (i.e., emails, PDFs, Word docs, texts, etc.)? Having an eyewitness testify that the email at issue is the same one he received is one way, but the eyewitness may no longer work for the client, may leave the client's employee prior to testimony, may have memory issues, may simply not be convincing, and so on. Making a forensic image of the location where the digital files are stored, on the other hand, builds a cost into the process (of the e-discovery vendor or the in-house IT specialist), but limits that cost dramatically not simply by limiting the dollar-cost for preserving the data, but perhaps more importantly, limiting the risk that the $X million litigation will not be compromised or lost because data was not properly preserved. The same strategy applies to processing e-discovery, reviewing it and producing it—all of those steps cost money, but by spending a limited amount of money to put into place an unchallengeable process, the cost of an unimpeachable process may be limited, as may be the risk that the litigation will suffer because the process cannot be defended.

The cost of e-discovery, then, is like the cost of health insurance: if one is healthy, the money spent on insurance can seem wasteful, but once a procedure is needed, the cost of the insurance seems like the best expenditure a person could make. In the pre-coronavirus world, readers felt like healthy potential health insurance clients, and so had to be reminded constantly of the potential costs of e-discovery and IT missteps. Underlying articles written before the threat of coronavirus emerged voiced that constant reminder.

Coronavirus-Era Articles

The realities of the business world in the coronavirus era has changed thinking about e-discovery and IT. What was unthinkable before is now standard.

One problem that appears to have disappeared because of the virus is that of the older generation of attorneys who have no understanding of digital technology. Understanding the virus means giving up fears of examining scientific matters; as well, it means bringing scientific understanding to lawyering generally, not exclusively when the litigation subject matter involves a scientific concern. Almost silently, then, coronavirus-rra articles have brought to the legal world a new approach to scientific matters by older litigators no longer trapped in what they learned 30 years ago or more.

The largest societal changes arising from the virus involve how persons must conduct themselves to prevent or minimize the spread. Perhaps the key change is that "nonessential businesses" are closed. Listing nonessential businesses takes much less time and thought than listing essential ones. Essential businesses exclude almost all businesses save health care providers and food suppliers. Nonessential businesses certainly include law offices and large businesses, the latter constituting many of the clients of the former. To accommodate the closing of law offices, trials and other judicial proceedings have been postponed, legal deadlines have been pushed back, and other steps to alleviate lawyers from having to do their jobs have been taken. To accommodate these changes, steps have been taken that have been discussed in articles in legal periodicals so much it is very hard to recall that things were different only a month or so ago. Here are some examples.

Prior to the reaction to the virus, perhaps the IT topics most discussed in legal journals were the problems presented by hackers who had become expert at gaining access to private, protected data, notwithstanding the steps recently taken in the IT world to increase the protection of data. Because of the dangers hackers created, journal articles typically discouraged set-ups in which users had internet access to their private data. Taking a few steps backwards in the evolution of the discussion in these articles, initially internet access was flatly discouraged and users who wished to work remotely were encouraged to do so on devices that had no internet connectivity; data could be moved from a work to a home device by copying it to a thumb drive, locking the drive with a password-protected key, and unlocking the drive and copying its data to the home device when the user had arrived home. How the user could gain access to data on a daily basis was not an issue because, unlike the users prohibited from going to the workplace due to the social distancing rules imposed to combat the spread of the virus, users in the "old days" were expected to go to their offices each workday. When the virus arrived in the last few months, internet access to key data was a given, and working using devices that lacked internet connectivity seemed like a distant memory, a digital version of watching Charlie Chaplin movies on a black-and-white TV.

What has changed so radically is not the technology of protecting data accessible remotely via the internet but the cost of doing things. When remote access was promoted solely or principally to give "extra" data access to the user, the cost of providing and protecting that access was measured against the value of the extra access; when that measurement was taken, the value of the extra access was always considerably less than the cost of the access. When, however, the law firm or the large business is physically shut down by order of state or county governments and so the only way for the business concerns to continue and so generate wealth for their owners is through use of an IT system that allows for remote access and so permits users to work from home, the cost of providing that IT system seems small in comparison to the benefit of allowing the business to generate income. Technology certainly has changed, i.e., improved, over time, but values have changed even more so. Those changed values underlie and inform coronavirus-era articles even more strongly than the technological changes which are discussed in detail in the articles.

Another key cost change in the coronavirus world is the cost of producing e-discovery. To produce e-discovery, all potentially responsive data must be collected. While such collection has never been cheap, its cost prior to the coronavirus alert was considerably less than it is at present, as now collections must be done by "remote" vendors subcontracted by the vendor in charge of e-discovery; the remote vendors can and do charge more for the collections than does the vendor in charge of e-discovery. Following collection, the data would then have to be processed so it could be reviewed. Here, the cost of getting experts to conduct the processing and then hosting the processed data so that a team of reviewers could examine the data is, again, considerably greater than it was pre-virus. Prior to the onset of the virus, reviewers typically would report to one or more rooms at a vendor location and review data accessed at that location; now, with those reviewers confined to their homes, each home would have to have highly secure Internet access (although security can be overlooked when completing the litigation task is key, as articles which review how internal, digital conversations using the Zoom discussion application have been hacked), a desktop or laptop device large enough for the reviewer to use all day without being driven insane, and connections between reviewers such that discussions which used to take place in the vendor's review room could now take place between homes. Parties could avoid all of these costs simply by doing nothing until the various courts across states and the country declare that the courts have reopened and deadlines are now in place, but in doing nothing the parties would lose any valuable advantage gained by getting ahead of schedule, e.g., of settling the case early knowing which party's argument looks best in light of the production of discovery.

Parties, then, would have to determine what costs more, that of paying more for services or that of losing the advantages gained by having those services. This calculus has been part of litigation since there has been litigation. The coronavirus did not create the calculus, but simply has caused parties to change and re-balance the variables that populate that calculus.

Conclusion

When the coronavirus hit, it led to the same response in numerous aspects of our lives: people thought, or felt without even articulating the thought, that the virus was new, its makeup and the consequences were not well understood, and so any response to it would have to be invented from scratch. As with virtually every new entity, however, the better it is understood, the easier it is to see it as on a continuum with other well-understood things, processes and other responses. Thus, initially the legal community saw existing IT as in no way contributing to the understanding of or a societal response to the virus, but as we have lived with the virus we have come to understand how to adjust IT to help us live our lives while dealing with it. Articles about how the virus created problems for the legal community as it tried to continue its business in a world where business itself and, indeed, personal relations gave way to pieces about how IT is being used to keep legal businesses going (e.g., accessing data and legal documents being drafted or reviewed) as well as keeping groups of people together when those people are physically separated (e.g., using Zoom to conduct personal activities such as Easter or Passover celebrations as well as to have group meetings in a business context).

A review of responses to the virus and its relationship to the digital world, then, should reveal that, on personal and professional levels, we are understanding both the virus and IT better and better. There is no way to see the experience of the virus as a good thing masked by the problems it has brought to so many (in fact, to greater or lesser degrees, to everyone). We can, however, appreciate that we are learning from the experience, what we are learning (not just about the virus, or IT, but about many aspects of ours lives), and how much better we will be, as a society, when the virus no longer presents an immediate danger.

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses. Contact him at [email protected].