In a Victor webinar on the importance of communications during a project and documentation of the communications, observations, and other project-related information, we reminded design professionals of the damage that the routine recording of internal video conferencing could cause. We also wrote about the risks in our article, “Videoconferencing Can Raise Professional Liability Exposures” (access limited to current Victor policyholders).
Casually recording and saving video conferences or online meetings may result in the firm preserving evidence of its wrongful acts or, at a minimum, damaging its reputation and credibility. Even though recording project meetings can sometimes provide support or defenses in any disputes that arise on a project, recording and saving video meetings without any rational protocol could prove costly and overwhelming in terms of volume of information to review, preserve, and produce in any litigation.
The use of Zoom, Teams, and similar video conferencing platforms has become increasingly common as design firms decentralize their offices. While these tools can greatly facilitate communication among project participants, there is the danger that they can also establish discoverable information that could be used against the design firm in claims from clients, contractors, users of facilities, or others alleging harm from the firm’s negligence. Zoom calls and similar sharing platforms potentially create a source of electronically stored information that must be understood and considered by firms using those tools.
Every design firm using video conferencing platforms should have policies in place to address when and why they should record meetings and how long to preserve those recordings. Most design firms have record retention and record destruction policies for other project-related information. The same should also be addressed for videoconferencing recordings.
Unless required by a design firm’s contract with its client, there is generally no obligation to record and store video meetings; firms are free to establish their own policies. The problem for firms is that such meetings often involve discussions of designs, procedures, and problems that most firms do not want to share with clients or claimants. Once litigation against the design firm is anticipated or started, the design firm is obligated to preserve existing recordings of those meetings and to conduct a reasonable search to allow the identification of their importance and to foster their proper preservation. The recordings are records, and if they are requested in discovery, the firm is obligated to timely review and produce the relevant recordings.
There are many problems with identifying, preserving, and potentially producing relevant recordings. Determining what must be preserved and ultimately produced in litigation takes time of both the firm and its defense counsel and could involve the use of expensive IT consultants to conduct the review. Design firms should carefully assess their procedures for recording meetings and have a record destruction policy in place to prevent the future use of the electronically stored information in claim proceedings.