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Legal Discovery in the time of COVID

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As so many facets of our world continue to be upended by the COVID-19 pandemic, how is the legal discovery process being handled, and can it be done effectively?

“During the COVID-19 crisis, organizations should continue to be mindful of their discovery obligations in pending (and potential) litigations and investigations, and also be mindful of practical impacts due to changed work conditions” explains an article on Practical Considerations by Paul Weiss Rifkind Wharton & Garrison LLP. “Thoughtful planning, efficient execution, and close consultation with counsel are important, especially during this time, to ensure that organizations can meet their obligations and manage related risks in an effective, defensible manner.”

We continue to be surprised by the businesses and processes affected by COVID-19. As law firms shut offices down and slowly re-open with only critical staff, where does all the discovery work go?

The COVID-19 Litigation Resource Guide by Loeb & Loeb LLP states, “Even in cases that do not qualify as essential or emergency, or where proceedings that ordinarily would require in-person appearances have been postponed or canceled, litigants may be able to proceed with discovery matters. By and large, courts have encouraged counsel to work together to proceed with discovery where feasible and to agree on alternate arrangements where the pandemic has hampered progress.”

Litigants seem to be heeding this advice, based on our observations. At Iron Mountain, we have actually seen a surge in demand for our Discovery Escrow Services, which provide a secure process and environment for gathering and examining intellectual property (IP) evidence under dispute.

With Iron Mountain acting as a neutral third party in the discovery process, the Discovery Escrow Service provides a secure and controlled environment for both plaintiffs and defendants. Plaintiffs can access and examine the IP in question, while eliminating the potential exposure and risk associated with defendants delivering that proprietary information directly to the plaintiffs. In today’s environment where COVID-19 restrictions may provide additional limitations, our secure data protection vaults have already been classified as “business critical” operations, which eases the burden of getting discovery work done during a pandemic.

Year-to-date, the e-discovery depositors (defendants) make up 44% of companies using Iron Mountain’s Discovery Escrow Services, while accessing parties (plaintiffs) make up the remaining 56%. Technology is by far the biggest industry sector for the companies using the Discovery Escrow Services, with at least 75% of companies being in a technology field. With a national footprint of secure discovery locations, there is likely a nearby facility litigators can conveniently leverage for any patent infringement and trade secret misappropriation cases.

In summary, a post on IP Considerations During COVID-19, by Burns & Levinson LLP, delivers prudent guidance as companies and law firms continue to navigate a changing landscape due to the pandemic. They state, “The COVID-19 health crisis has widely impacted how the world operates, and the realm of intellectual property law is no exception. However, many practitioners can and should continue to proceed as diligently as possible to secure, enforce, and protect IP rights that will far outlast the current crisis, while others may even be able to use their IP technologies to join the fight against the pandemic. With persistence, patience, and adaptive strategies, individuals and entities may survive the current crisis and emerge with decades of strong IP rights in their future.”

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