It is widely recognised that the COVID-19 pandemic will affect the ability of a court or arbitration tribunal to hold hearings or conduct other in person proceedings. What is less recognised, however, is that the COVID-19 pandemic – and the various public health measures taken in response to the pandemic – also affect the preparatory steps of a case. Of particular note are the difficulties COVID-19 has caused for the production of documents, in procedures that contemplate that practice. Without entering into details as to different rules and procedures related to document discovery, or attempting to be comprehensive, this Client Alert addresses a number of difficulties that COVID-19 presents for document discovery processes.
Three of the most relevant of these difficulties – ensuring preservation of documents; addressing difficulties in obtaining documents; and dealing with furloughed custodians of documents – are discussed below. It seems prudent for judges, arbitrators and parties to recognise these difficulties and take reasonable steps to alleviate them.
Preservation of documents while a dispute is delayed
Many claimants are choosing to delay the filing of their claims during the COVID-19 pandemic, on the understanding that the claim can still be filed within the statutes of limitations once lockdown and other measures are relaxed.
Claimants taking such an approach should carefully consider how to ensure that their potential opponent does not destroy or delete necessary documents in the regular course of operations. Generally speaking, an entity is not required to archive and collect every piece of writing that it produces. Parties tend to forget that, in most procedures that contemplate document production, production does not encompass all documents ever created; it encompasses documents that are archived and preserved only and then found in the archive after a reasonable search.
Many enterprises regularly delete electronic writings and files– including emails and voicemails – without backup, as a standard means of preserving storage space and minimising costs. Archivists may make reasonable judgments about what documents need to be preserved, both physical and electronic. There is often nothing wrongful in an entity’s destruction of documents when it is not aware of potential litigation, perhaps as long as that deletion is not specifically motivated to destroy evidence.
Potential claimants who delay filing their claims may therefore face an opponent that has destroyed relevant documents in a perfectly lawful manner. Although not as well known in English and international arbitration practice, in such circumstances, North American practice is for a potential claimant to consider sending so-called a “Litigation Hold” or “Preservation Notice”– i.e., a formal notice of their potential claims with a request to preserve relevant documents. It is unclear if, in English or international practice, such a notice will generate the same legal obligations on a potential respondent as in North American litigations. Such notices do, however, generate a record of the responding party’s knowledge of the possibility of claims.
Difficulties in obtaining documents for review and production
Judges, arbitrators and parties should also be cognisant of the practical difficulties of gathering documents during the COVID-19 pandemic. Many countries have ordered restrictions on work and travel. Numerous enterprises are operating on skeleton staff, under work-from-home arrangements. In many instances, despite counsel’s best efforts, there may simply not be anyone to assist in gathering relevant documents – especially extensive electronic documents. The same applies to gathering documents for preparation of the case generally.
It is not the case that document collection and review can always be conducted remotely. In some instances of extensive collection and review, either vendors or counsel (or both) go to the client’s site to physically copy portions of hard-drives and servers in person. These tasks may be difficult if not impossible in the current environment.
The difficulties of obtaining documents for review and production are heightened in international litigations and arbitrations. It is not uncommon for counsel or vendors to travel to far-flung locations simply to collect electronic and physical documents. One of the authors of this alert once flew to a remote construction site in northern Newfoundland to do so – and was told that, after the construction was done, it was unlikely another human being would step foot in certain parts of the construction site for centuries. Travel to mining sites, oil platforms and other similar locations is not unheard off. Such foreign travel might be unreasonable in the current circumstances.
It is therefore important for claimants, respondents and judges/arbitrators to acknowledge the current difficulties and reasonably relax deadlines and limitations for review and production.
Access to furloughed staff
Furthermore, it may be the case that a relevant custodian – who has important information for the document collection and production process – is currently on furlough or a reduced working hour arrangement. Such an employee cannot be required to participate in the preparation of a litigation or arbitration. It might constitute a substantial burden on a producing party to be required to provide that custodian’s documents until the furlough or limited work arrangement ends. Judges and arbitrators can in most circumstances and without much difficulty make arrangements to take due account of that circumstance as well.
In conclusion, the COVID-19 pandemic does not only affect in persona hearings. It affects numerous stages in the arbitral or litigation process, including document production. Reasonable measures should be designed to alleviate the resulting difficulties.