COVID-19 has caused many seismic changes to our legal system and ways of lawyering. Limitation periods were suspended, courts are conducting online hearings, and many lawyers continue to practice from their homes instead of their offices. While these shifts have been the topic of much conversation, I would like to discuss a less talked about consequence of COVID-19: the reduced utility of sticky notes.
Sticky notes are one of the few "must have" items in court. Throughout a hearing, the pile of marked up and crumpled sticky notes on the counsel table grows. At the end of the day, I collect the stickies and manage them with the rest of my hearing notes.
But in an era of virtual hearings, sticky notes are not much help. What should litigators be using to replace the flow of conversation in our new online world?
At the outset, it is important to remember what is being communicated when you pass notes in a hearing. Although these notes tend to be informal, your hearing notes are confidential communications that can reveal privileged information.
Now that we are communicating at a hearing through electronic means, we are creating a digital record of those conversations. You cannot take comfort in the fact that your sticky notes will live in your hearing binder away from prying eyes.
Here, I canvass some of the best (and worst) ways to "pass notes" in a virtual hearing. In particular, I examine how to minimize the risks of electronically conversing during a hearing:
- E-mail. Your firm e-mail is one of the most familiar and comfortable ways to communicate with your colleagues during a hearing. And your e-mail is not likely hosted by a software provider that uses your data for their own purposes. But e-mail does not provide the same functionality as instant messaging services and can co-mingle with the other e-mails in your inbox (and let's face it, you don't want to look at your inbox during a hearing).
- Business chat software (e.g., Skype, Microsoft Teams). Some firms use Skype for Business or Microsoft Teams for instant messaging amongst firm members. To gain access to these services, firms enter into agreements with providers that include terms about the security and the confidentiality of the information exchanged. Because these services are paid-for and are subject to terms of service agreements (as well as being configured according to firms' IT policies and standards), they allow for transparency on where the data is stored and when it might be accessed. And because these services offer chat functionality, they are an easy way to converse during a hearing.
- Group chats. You might think that it's a
good idea to set up a Whatsapp or text message group to communicate
with colleagues during a hearing. It's not a good idea.
Whatsapp, iMessage, and other text messaging services are designed
for personal communication, not business communication. These
services have very limited obligations to protect your data or its
confidentiality. Messages sent through these services will not be
subject to your firm's data retention schedule or part of the
virtual hearing binder. And using them for communicating sensitive
client information is likely prohibited by your firm's IT
While Whatsapp messages are encrypted, Whatsapp is owned by Facebook. Whatsapp's terms of service state that "Facebook will not use your WhatsApp messages for any purpose other than to assist us in operating and providing our Services" but Whatsapp "may transfer data within the Facebook family of companies and to third parties, including service providers and other partners.1 Would you think it wise to have your in-hearing chat over Facebook messenger? If not, then you shouldn't use Whatsapp, either.
- Zoom. Although Zoom has its own chat function, you should avoid using this for a different reason: it could be disclosed to the court. Assume that everything you type into the chat box on Zoom will become part of the court record. Only use this chat function to get the attention of the court staff who is administering the virtual hearing.
Regardless of the specific means used to pass notes, you should also consider who should be part of the conversation. In court, notes remain amongst co-counsel. But in the virtual world, your clients will be watching the hearing online and can join the chat thread to provide comments. You should discuss with your client whether they want to participate on the chat thread or consider having one lawyer on the team receive comments from your client that can be circulated to the group. Also, don't forget about the telephone – at breaks, you can host a conference call with your client to get input (as you would in the hallways of the court house). And because phone conversations do not create a digital record of the discussion, they are one of the most secure ways to share and convey information.
No matter how you translate sticky note passing into an electronic conversation, you must keep your confidentiality obligations top of mind. You are now creating a digital record of your conversation, and you must adopt practices that reduce the risks to you and your clients.
1. "WhatsApp Legal Info" https://www.whatsapp.com/legal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.