BYOD poses special challenges for e-discovery
There is a question, however, whether data residing on an employee's personal mobile device is under the control of the company.
Elle Pyle and Jessica Smith, attorneys with the law firm of McDermott Will & Emery, advise a company to assume that corporate information that resides on employee-owned devices is within its control for legal and regulatory e-discovery purposes.
"Assuming the company can get access to the device, the mix of employee information (including what may be sensitive personal data) on that employee owned device creates its own set of potential issues that must be considered in the collection process. IT and other workers accessing mobile devices may gain access to legally protected personal information in the course of collection," they wrote in an Inside Counsel article.
However, this could run afoul of state privacy and computer trespass laws. The lawyers recommend that the company obtain employees' consent to access data on their personal devices as part of its BYOD policy and procedures.
"Counsel needs to carefully consider their litigation response in jurisdictions with strong data privacy regulations. They should ensure that internal counsel and external counsel are sufficiently aware of the potential existence of unique data on BYOD devices when preserving and collecting data," the attorneys explained.
"Finally, assuming that the device is available and access issues have been dealt with, counsel should be prepared for a more complex (and potentially more costly) execution process than they may be accustomed to on collection due to the multiplicity of hardware, software and applications in a BYOD environment," they added.
Of course, what is good for the goose might not be good for the gander. Employees could be placed at risk by agreeing to a BYOD policy that enables access to data on their personal devices.
Employees could be dragged into litigation or even into jail by agreeing to a BYOD policy, we warned in a previous article. Their personal devices could be searched or even surrendered to the court as part of a legal proceeding.
In addition to the costs and security issues, BYOD raises legal issues, many of which have yet to be resolved by courts. In the case of e-discovery, having a clear BYOD policy about what data the company can and cannot access on employees' personal devices is the best first step for a company to prepare itself for legal or regulatory action. - Fred