Because of the disruptions caused by the COVID-19 pandemic, the new normal for many design firms means using online video conferencing software. Most conferencing programs allow for easy recording and sharing of videos, creating an innovative tool for bringing others in on the conversation. But this function also raises a host of potential confidentiality, discovery, and security issues.
As often happens with new technology, risk management best practices are still catching up. Many of these videoconferencing programs advertise the recording and sharing of meetings as a benefit, but that feature also carries risks that could make a difference in determining professional liability.
Before a firm uses the recording feature, it needs to consider how to manage the associated risks. A video recording is a digital document no more or less secure than any other document on an office server. During a dispute, there will be a demand by the adversary for all relevant documents—a recorded videoconference meets the criteria of discoverable “electronically stored information” that has to be provided.
A firm might have to produce all recordings of a project team’s videoconferences during discovery for a lawsuit by a client alleging damages from breach of contract or from the client or a third party alleging harm from a firm’s negligent performance of professional services. A recording of a project team videoconference during which participants are discussing various project-related issues might include comments by firm members on the legal risks associated with performance that might not meet contractual requirements or professional standards. Even efforts by the design firm to improve its internal operations could be used to establish negligence in the firm’s current performance of professional services. Opportunities are abundant for statements made during meetings about internal quality control procedures or contractual performance to be mischaracterized and distorted during negotiations or adjudication.
It certainly does not seem possible or desirable to prohibit videoconferencing or to ban recording of videoconferences in all instances. A design firm’s best protection against the misuse of recording is to have a written policy that includes expectations with respect to the use of videoconferencing technology.
Videoconferencing is a powerful tool that will help design firms make the best of this period when on-site meetings are not feasible. However, firms need to make sure this technology is working for them and not setting them up for exposure to other problems.
For more information and guidance on keeping videoconferences from leading to adverse results in litigation, we have provided Victor and CNA policyholders with more information in our Videoconferencing Can Raise Professional Liability Exposures article (access limited to current policyholders and brokers).