5 May 2020 (Brussels, Belgium) – The pandemic argument between mitigation and suppression now seems to have been settled, in favor of the latter. Well, that really depends on what you read and how much you really want to get into this stuff, as I will explain below. You can build a simple mathematical model of an epidemic in an Excel spreadsheet, using four columns to represent the “Susceptible”, the “Infectious”, the “Recovered” and the “Dead”, calculating daily totals to show how a population is affected, using any number of data sources. I prefer the data feeds coming out of the Johns Hopkins Coronavirus Center and the one from Worldometers. I published my list of the best COVID-19 data sources at the end of this post.
Hundreds of us in the e-discovery world have been doing this, comparing notes and exchanging thoughts on Linkedin Zoom and many other chat sites and chat groups. Because for many in the eD community it’s what they do every day. They are “data jockeys” – juggling and analysing data. Driven by the intoxication of technology. Yes, a tsunami of material to read. With a high level of complexity. But you cannot let the complexity of knowledge be an excuse for maintaining a dominant stupidity. We need to understand this challenge to be taken up, prudently but with determination. We all know stuff. We all know data. More than ever, there is an urgent need for perspective, for bringing about a new coherence, and for far-sightedness, even if encyclopedic knowledge is out of reach.
And so, in the U.S. at least, the drive is “back to work”. The politicians say we have managed to “stabilize” the spread of the coronavirus “sufficiently enough” (though today’s news is screaming “NOT SO!”) to begin debating when and in what ways to “reopen,” and to “normalize” – against all moral logic, with a horrifying and ongoing death toll. Thousands of Americans are dying each day, in multiples of 9/11 every week. But the key: get that money flowing again! The U.S. government is eager to show the death rate is no longer accelerating, but holding steady, which is apparently to a point where the onrushing terror can begin to fade into mere background noise.
Charlie Warzel raised the grim and yet wholly plausible prospect that Americans will simply normalize COVID-19 deaths the way they have normalized deaths from gun violence. A few hours later Trump all but confirmed it.
And suppression of the disease? Ah, this infernal disease is shape-shifting before our eyes. The most bedeviling of confusion. Decimating our carefully laid plans of “recovery” and unsettling our minds at equal pace. Every analysis will tell you it is not at all certain that suppression will succeed long-term. As a Johns Hopkins reports notes:
No public health intervention with such disruptive effects on society has been previously attempted for such a long duration of time. How populations and societies will respond remains unclear.
So we are entering a new economic twilight zone that is likely to be a feature of the western world for months to come. When the lockdown begins to phase out and/or ends, a calculation will still have to be made about the relative merits of unappealing alternatives. The poor public understanding of what this disease does to the body, the reading of mortality rates, knowing how suppression is supposed to work and the “flattening of the curve, and the dreaded, expected “second wave” … all of that does not make this any easier.
And do spend some time parsing the language because that’s (allegedly) what the e-discovery community does, too, not just playing with the metrics of data. Laugh (and cry) at the language around us. Especially the bankers, who have always had porous, inexact minds, now offering opposed models and projections. The chief U.S. equity strategist at Morgan Stanley argues for the return to a bull market. “The virus,” he says, “has already created the recovery through the stimulus.” But the global equity strategist at JPMorgan disagrees: “My concern is this relief rally might not be sustainable,” he says. One could be forgiven for questioning whether the financial markets are protected by some unseen failsafe when its future depends on which analyst lies most persuasively.
Who really is the COVID-19 patient? And do these bank analysts really disagree? A closer look at their language says otherwise. The virus, one writes, “has created the recovery.” The final word here refers not to the recovery of a single human life, or even the recovery of a population … but the recovery of the system that failed to protect those lives and populations in the first place. “This relief rally might not be sustainable.” Here, again, the language of health is perverted, retrofitted like old medical equipment to do its new and essential labor. “Relief,” in a better world, would be associated with the end of suffering, and “sustainability” would mean the support needed to uphold and even nourish life. In this case it describes the new energy of the financial markets after the jolt of yet another unequal stimulus.
Simply put: coronavirus places the risk of reopening the economy on the most vulnerable workers while tacitly defending the luxury of those who can afford to stay at home.
But the drive is “back to work” and “new normals” and there is no e-discovery vendor who will suffer more from COVID-19 (from an economic/financial standpoint) than those that provide managed review at hundreds of off-site locations (meaning away from their end-client) scattered across the discovery ecosystem. All that sunk cost … computers, servers, office equipment, etc. … already spent (or maybe leased) which cannot be recovered unless business drives their use. These were operations built on the expectation of large volumes of work. Now there are depreciations, while the overhead costs remain and they can’t be reduced overnight.
And now facing future costs … operating under the shadow of COVID-19. Because when you read the contract e-discovery document reviewer chat boards there is one issue, and only one issue, on everybody’s mind:
If they reopen the review centers, and we are forced to work in a dangerous environment, no protection, under various types of duress, such as threat of termination, either stated or implied, is this not a legal issue? An employment issue?
Yes, say the employment attorneys who are also on these chat boards … sharpening their knives. And so these e-discovery vendors are forced to do a rethink, analyse costs, etc. They are hardly comforted by the likes of Amazon which said to keep Amazon workers healthy and products moving it could cost an additional $4bn or more in the next quarter for COVID-19 related protection.
But that’s a poor example because it conflates two kinds of costs. Because there are “costs” … and then there are “costs”. When we talk about “costs” which are lost opportunities, essentially blocking the production and sales of goods and services, then these represent a genuine loss over what could have been. But “costs” that require expenditure to acquire newly requisite goods and services are actually opportunities by a different character. Wars for instance are terrible for destroying production, but cleaning up afterwards, if properly financed, are a stimulus (see: the Marshall Plan).
We are in the realm of the latter type of cost. Last week one of my staffers was in a Zoom chat with a group of U.S. architects and office planners about the “death of open plan and large, common rooms” in the surge of post-COVID planning. There has been a nearly 100% sell-out of plexiglass and plastic/cloth office dividers across all manufacturers. One very (very) large tech company made an order for ~10,000 units that just about zeroed out all inventory in the U.S. There is now a 3 month backlog in orders.
I know, I know. They should have just kept the cubicles. Nobody ever wanted open offices.
Some of these options are being considered by U.S. e-discovery managed review vendors:
Business is booming for makers of Plexiglas barriers in Europe, too, mostly for supermarket checkouts, corner shop tills and restaurants, but for offices, too. One of my Italy-based staffers told me several plastics manufacturers near Modena in northern Italy have been overwhelmed and are shipping not only throughout Italy but to France, Germany and the UK.
And a side-note. An Amsterdam restaurant has come up with an innovative way to adapt to the 1.5 metre society over the summer: dinner inside an individual greenhouse.
The restaurant cannot, of course, reopen until the government gives permission to do so. However, at the moment, it is testing its new set up, which is comprised of four small greenhouses. Guests can sit in twos or threes inside the greenhouses. Greece and Italy are testing something similar. Given the 1000s of kilometres of harbor and seaside space across Europe where restaurants are situated, plus the 1000s of open squares across Europe, it looks to be a workable idea.
But getting back to document review, you math geeks will see the issue straight away, as have the managed review centre planners. Depending on the size of your review centre, if you are going to use any of the options above to maintain the proper distance between reviewers, you can lose almost 1/4 to 1/2 the space you now have to make this work.
Worse, this only “solves” social distancing. As these photos show, all are open. They have sides, but no tops. You need to solve the central air, negative airflow, and air filter issues. You’ll still have a mass of people crammed into a closed space with everybody’s “exhaust” circulating for 8 hours a day, 5 days a week. It will need to be reconfigured like a hospital air system. Otherwise, it’s not my idea of a super safe work environment during a pandemic. Making people just “feel” safe and not really be safe and secure is not the best situation.
Plus something they have no control over: the big part of the current business environment today is reliant on shifting large numbers of people at peak times in close proximity to one another for the whole or part of their journeys and then shoe horning those people into crowded unhealthy buildings. Total exposure. Even if you control “shifts”, the danger remains.
It’s why an entire process/procedure would need be to be effected. As detailed in the Amazon COVID-19 facility analysis you need four elements:
• hand washing
• distance between workers
• intense facility cleaning practices
• the use of personal protective equipment (PPE)
It’s a big reason several managed review vendors are actively building out remote work options, planning to close or reduce office sizes … and even telling some employees “finder a cheaper, more hospitable place to live. You’ll be working remote”.
Because you need to look at liability lawsuits as a kind of tax on bad actors – individuals or companies whose negligence damages people and society. If there is no economic risk to failing to safeguard workers, there is little financial incentive to protect employees. We want businesses to take responsibility. All of tort law is about creating a strong incentive for people and companies to not act badly. It’s about negative externalities.
To understand the economist’s perspective, let’s consider “externalities.” In economics, an externality is a cost or benefit associated with an action, which accrues to a third party, not the primary actor.
For example, a business that pollutes creates a negative externality that costs its community and society. There are mechanisms to account for that, like carbon taxes, which force companies to pay for the harms others experience from their for-profit activities. Another negative externality of corporate behavior, this one addressed in part with lawsuits, is the American opioid crisis. States have sued major drugmakers, like Purdue Pharma, for pushing highly addictive prescription pain medications such as OxyContin despite knowing the dangers. There are at least 6 e-discovery document reviews diving into this one.
In the context of the pandemic, infection is one obvious negative externality. If you go back to work and are infected and fall ill because your employer hasn’t taken sufficient precautions to ensure a safe environment – doing nothing differently than it did before the pandemic, say – your illness is a negative externality of the business’s desire to resume operations without making concessions to the new circumstances, which require greater vigilance, additional protocols, and a new approach.
A negative externality is just a fancy economic term for “selfish” behavior. You want people to be able to sue. Because you want people to be liable for the damage they do if they aren’t acting responsibly.
When it comes to all-things-economic in the e-discovery ecosystem I tend to defer to Aaron Taylor who owns GreenLight Discovery. We had a discussion about “costs” and negative externalities in this industry and he made the following observations:
In most significant business decisions, I believe there are two types of “risks” – negative risks and positive risks. Negative resource risks (financial, human, reputational, etc.) adversely impact the business internally; for a fairly obvious example, a business may decide to not invest money in newer and safer assembly line equipment, because they don’t want to suffer loss of income due to shutdown for upgrades, or spend the significant amount of money for the indirect benefit of employee safety. Thus, they see the risk of spending money and losing productivity as a negative factor.
Conversely, the company that invests in safety feels this to be a positive risk … yes, they are spending money on something with no obvious and direct return on investment, but they believe that workers who know or feel they are valued enough to have safe working conditions will in fact be more productive, thus providing eventual positive return on investment.
He also made some keen observations about the need for long-term thinking, including a few comments impacting remote document review work.
NOTE: It is not my intent to discuss remote document review/remote work at length in this post. Many of you have read scores of articles on that subject. Most are far too abstract for my taste. Our team decided to canvass 20+ vendors providing remote document review plus about 100 remote reviewers. We’ll publish the results in a forthcoming post.
But on to Aaron who told me:
How does all of this relate to eDiscovery review work in this time of COVID-19 pandemic? Perhaps it’s best to look at changing fundamental approaches to how review work is done, rather than searching for the quick fix of adjusting work spaces, or other reactive measures.
There’s no doubt that much review work, especially first pass or preliminary reviews, can be performed quite easily in remote settings. The software is easily set up in the cloud, collections are routinely entered as load files, and securely managed. eDiscovery teams can focus on ensuring remote workers have adequate equipment, such as dedicated laptops; they can be given financial assistance if needed to upgrade their internet connections if needed, or proper office-level furniture. The eDiscovery company must look proactively at investment in remote settings as something more long-term, accept the “positive risk” of modifying their business model to meet this need as their “new normal”.
Secondly, review work locations must be re-imagined. The existing space most likely is not going to expand, and staff numbers must be lessened simply to avoid crowding. This scenario does not necessitate a negative risk of loss of production. Managers will have to become more creative in scheduling time when review teams must come together for final reviews, meetings and consultations. One approach is to conduct an intensive overview immediately of their discovery history; put together models of time frames when they are most likely to be in final review mode, statistically model these time frames so that teams can “stagger” or better share existing space. The new normal is simply going to demand a move away from intensive office interaction, toward effective remote connections and well-planned and -spaced team meetings.
I’ve only posted two short bits from our conversations. But taking all of our conversations together, the two big themes Aaron seems to formulate are these:
• Proactively provide better remote working conditions for reviewers. Get over the “fear” that workers might get nicer home offices at company expense, or that the company has to let go of some control over worker oversight. Trust the workers, give them the tools and the environment to be productive – the company thought enough of the workers to hire them, they must now show them the trust needed to do their job.
• Become innovative and perceptive of new approaches to the work environment itself. This includes not just tweaking existing processes but rather creating new processes. It’s not the tired phrase, “thinking outside the box”. There is no box; there’s nothing to be “outside” of. We are dealing with entirely new territory, new restrictions, and new possibilities. As Aaron told me “to react only to negative risk will produce stagnation or worse; protecting reviewers’ health and safety by modifying work environments is a positive risk that must be accepted.”
But Senate Majority Leader Mitch McConnell might come to the rescue of U.S. business. He is now insisting that employers be shielded from liability if their workers contract the coronavirus. According to press reports, the battle has unleashed a frenzy of lobbying, with major industry groups, technology firms, insurers, manufacturers, labor unions, and plaintiffs lawyers all squaring off. The early drafts of the legislation set up legal protections that “give all businesses the confidence” to reopen without worrying about lawsuits.
The gist of this past weekend’s talk shows (I watched three and followed the rest on Twitter) as spewed by Republican representatives: companies need to to hang in there and try to survive, or else you are just going to have a bunch of companies declaring bankruptcy or just becoming insolvent. My favorite line: “we cannot have a second pandemic of litigation”.
The legislation pretty much tracks the language of the policy papers put out by the U.S. Chamber of Commerce and the National Association of Manufacturers: limiting lawsuits to instances where a company had actual knowledge that workers could be exposed to the coronavirus and consciously disregarded that information or acted with reckless indifference. “Actual knowledge”? Not defined. “Consciously disregarded”? Not defined. I’ll defer to Wayne Butler, one of my staffers based in Washington, DC, who will have a full report on these legislative moves in due course. In the meantime, get out the popcorn.
Another trial balloon I’ve seen: a compensation fund. Soldiers exposed to toxic Agent Orange, victims of the September 11 2001 terror attacks, the BP oil spill in the Gulf of Mexico, the Sandy Hook massacre, sexual abuse cases in the Catholic church, the VW emissions scandal … all of these used the compensation fund method.
And interesting in the light of Trump’s claims against the Chinese over the virus. For instance, in the Agent Orange fund, only U.S. soldiers had any form of compensation … not the people in Vietnam and Laos who had this poison dumped upon them (as would happen later in the Union Carbide factory poison spill in India). Just the usual hypocrisy from a Big Power for whom poor foreigners can be, in this case literally, dumped upon.
But who is going to be able to fund a giant 9/11-type fund? Back then the U.S. economy was going strong. Perhaps we can devise an alternative hybrid model, where exposed companies pay premiums in exchange for legal protection, which could supplement public funding. The government could act as a kind of insurer as it has done after some natural disasters.
NOTE: policy dilemmas over the legal system are starting to be confronted by politicians around the world. Singapore was one of the first countries to act, swiftly passing legislation in early April to give businesses and individuals temporary protection against suits. The six-month relief covered everything from pre-crisis contracts on hotel bookings, factory leases and weddings, to employment-related issues. The Singapore government said it realized this was a situation where you simply can’t leave things to market forces, according to a lawyer I spoke with in Singapore.
What would be very helpful (yes, this is my impossible, my pie-in-the-sky suggestion) would be for the government to arrange some key test cases through the courts, which might avoid huge numbers all trying to pursue the same point at the same time, costing everyone more money and stretching the courts. For example, rulings on common wording in insurance policies, rulings on cancellation of events at venues (e.g. weddings), rulings on cancellation of travel where refund is refused, frustration of contract examples, etc. It’s then a case for the government to decide whether the legal result is “fair”, or whether they want to provide additional support to the party that loses out under the law.
I consider myself fortunate to be living in Belgium during this lockdown, a system that not only responds to the needs of individuals but also to the needs of the public as a whole. I would have been fine back home in Crete, too. We’ve had no cases in my home region, due to its remoteness. I (hope) to be back home next month.
In America, the word “public” – as in public health, public education or public welfare – means a sum total of individual needs, not the common good. As Dr Anthony Fauci, director of the U.S. National Institute of Allergy and Infectious Diseases and just about the only official in the Trump administration trusted to tell the truth about the coronavirus, said “Our system does not, is not really geared to what we need right now … It is a failing, let’s admit it.”
Contrast this with America’s financial system. The Federal Reserve concerns itself with the health of financial markets as a whole. In March the Fed made $1.5tn available to banks, at the slightest hint of difficulties making trades. No one batted an eye.
When it comes to the health of the nation as a whole, money like this isn’t available unless by Congressional mandate. There are no institutions analogous to the Fed with responsibility for overseeing and managing the public’s health – able to whip out a giant checkbook at a moment’s notice to prevent human, rather than financial, devastation. The Fed can close banks to quarantine financial crises but the U.S. can’t close workplaces because the nation’s social insurance system depends on people going to work.
Ironically, even if a test for the COVID-19 virus had been developed and approved in time, no institutions are in place to administer it to tens of millions of Americans. Local and state health departments are already bare bones, having lost nearly a quarter of their workforce since 2008, according to the National Association of County and City Health Officials.
Over the years the e-discovery contract reviewer community has sent me 1000s of horror stories about their lack of health coverage and health protection. Now, it’s even worse. There is no public health system in the U.S., in short, because the richest nation in the world has no capacity to protect the public as a whole, apart from national defense.
Despite an industry that prides itself on such codswallop as “meet & confer” and implementing algorithmic tools “ethically”, I’d like to think the e-discovery industry will do right, do what is necessary to protect its employees health-wise and financially since real life and death is at stake. Make “responsive” actually mean something.
But it won’t. Already, in remote document reviews, the pay rate to contractors has dropped on average $6 an hour, to comport with the drop in the vendor bill rate to law firms and corporations. Margins are tough. And, hell: clients certainly aren’t going to pay for those expensive review centers they do not need. But are reviewers being paid for the use of their home computer? Are they physically positioned for remote work: well-suited work area, ergonomic chairs, work-pods? No, not being paid, nor being asked any of those questions. Just questions about the speed of your broadband internet and the speed of your processor. Hell, they’re lucky to be working at all in a pandemic!
But I get it. It’s all about the money, only about the money. I took “Economics 101”, too. Economics is a system for optimizing resources, and, if it were trying to calculate ways to optimize a sustainable civilization in balance with the biosphere and individual needs, it could be a helpful tool. But when it’s only used to optimize profit …. well, you finish the sentence.
None of this is straightforward. The world under COVID-19 is a welter of conflicting mandates. First, stay inside. Second, go back to work — but not yet. That looming injunction is an admission on the part of heads of state and financial experts that global capitalism is like an animal that suffocates when it fails to move.
There are going to be potential employee coronavirus liability lawsuits. In America, at least. Because that is how it works. Like everyone on Earth, Americans are making up the rules of the coronavirus era as we go along. But because Americans are Americans, they go to the courts to write the rules. It’s in their genes. And it’s just nuts. Lawsuits are a terrible way to resolve these issues. Ruinously expensive, very slow and providing a solution only for the single dispute before the court. Yes, the self-reliant American. Reliant on being able to sue someone.
My team scans the COVID-19 litigation tracking boards (there are 6 and growing) that seem to be popping up all over. A few gems:
• Should police be told whether I am Covid-19 positive, before they respond to my emergency call (or don’t)? A judge in Cook County, Illinois ruled last Friday that they cannot be given the information, but the battle goes on. It has been appealed.
• Universities across the U.S. have canceled classes. Will they resume in the autumn? That could well depend on how much their universities fear being sued if returning students fall ill from the virus. Worse, parents are suing universities for return of tuition money already paid for school session cancelled. Will they refund some of that money since they were sent home midterm? There’s at least 4 lawsuits for that issue, too.
• One of my favorites. The state of Missouri is suing China, on the grounds that it started the pandemic. Can everybody use that technique to get Beijing to refund the cost of their coronavirus-cancelled summer holiday? Uh, no.
The list is endless (see my more comprehensive pieces on all of this litigation by clicking here and here). So courts will be making some of the biggest decisions in American lives in the coming months.
NOTE: as of the day this was written (5 May 2020) there were 377 law suits across the U.S. mentioning the virus in complaints. For COVID-19 litigation tracking our team uses (1) BusinessWire, (2) ClassAction, (3) Court Listener, (4) Dockets.Justia, (5) law360, and (6) Lex Machina. All offer case analysis (some include industry studies), and with many you can download the key documents on a docket and avoid the Pacer fees.
And it may well be that negligence will be hard to prove. I’ve spoken to about 10 U.S. employment law experts and they say it’s too soon to know how widespread such litigation could be: plaintiffs will struggle to prove causation at a time when so little is known about how coronavirus infects its victims. Said one:
It will be difficult to prove in court the source of where an individual caught the virus if testing of the general population is close to zero … testing in the U.S. is miserable … and knowledge of who has the virus is at same the level. You can’t. The other point is that most people do not suffer any meaningful harm from COVID, so they can’t really ask for damages.
So proving exposure is going to be hard. Proving causation is going to be hard. Even confirming the diagnosis could be hard. These cases will be scientifically complex and doctrinally challenging.
Still, they think there could be millions of potential litigants – more than in any mass injury situation, such as the 9/11 terrorist attacks, the BP oil spill, or even decades of asbestos litigation. The results depend on how many people are killed or injured by the pandemic – and whether businesses are granted protection from coronavirus lawsuits (see my discussion above).
Yes, it’s probably only a matter of time until we see those trial lawyer advertisements on TV “Have you or a loved one been harmed by coronavirus?”
Or how about “prohibition barbers”. Where you knock three times and ask for Sam.
And if there is a real, looming tsunami of liability it will be up to the lawyers who think it’s a worthwhile investment of their time and energy in a suit.
It’s why e-discovery vendors are looking specifically at the COVID-19 related restaurant cases across the country because the issues are potentially similar: workers alleging they were forced to work in a dangerous environment.
But at the end of the day, you do not want to eliminate liability, which is meant to protect people. If you let employers off the hook, they won’t take safety precautions. Which is why at this point vendors need to seriously focus on the suggestions offered by Aaron Taylor above, and the 4 main points I outlined above coming out of the Amazon COVID-19 briefing book:
• hand washing
• distance between workers
• intense facility cleaning practices
• the use of personal protective equipment (PPE)
In this post I have noted the need for a proactive, almost “shape-shifting” response by the e-discovery community. So I’ll leave the last word to Aaron Taylor who I noted above:
I think eD teams need to feel their way toward their discovery community work, adjusting to remote work environments at the same time, seeing and sensing when, how, and why do we do come together. Or even how we determine who should come together. The focus needs to be on what precautions to use, and what adjustments can we ask or demand from the legal community itself by us, vendors, who are providing the tools and the methodology for reviewers to do their job in these new environments.