BYOD – Another reasonable basis for discovery about discovery

by Searcy Denney Scarola Barnhart & Shipley
Contact

I still remember typewriters.

Heck, I still remember carbon paper, mimeographs and bag phones.

Would a company, “back in the day”, have ever asked an employee, “hey, we need you to bring your own typewriter, desk, chair, or carbon paper” to work with you?  Of course, not.

In the recent past and the present, some corporations have become enamored with encouraging the whole “BYOD” movement. Bring your own device to work is one of those issues that companies want to quietly whisper it is a bad idea and, yet do little or nothing about it.

What are the pluses?

Lower costs for the purchase, upkeep and replacement of laptops, tablets, and smart phones. Also, since the employee will always carry their personal phone, they are accessible. Executives who would merit their “choice” of phone type can now cater to themselves.

Downsides? Lots.

  • Information governance. Who owns what data and how does the corporation control the data, particularly with ex-employees? Can sandboxing work?
  • Confidentiality and privacy. Is it OK for a spouse to use the phone, too? Can email be shared?
  • Who controls security requirements? What happens if the employee leaves the device in a bar, a taxi or elsewhere? Can the corporation “track” the devices? Can the corporation “kill” the device?
  • Remote access. Can the corporation monitor and control cloud access?
  • Regulatory compliance. Can the corporation compel compliance with HIPAA and other legal requirements?
  • Legal actions. How will legal discovery of data on the BYOD be handled? How will recognition of confidential information be handled? How will forensic examinations be managed, particularly with former employees?
  • Device maintenance and repair. How does this get handled? Can the corporation compel specific repair shops with confidentiality agreements? Can they compel employees to only go to preapproved facilities?

Some believe that most of, if not all, the problems brought by BYOD can be handled through confidentiality and consent agreements. The truth is those rely on the conduct of the employee and the extent to which the employee is willing to (or remembers to) comply. In addition, the consent issue may provide the right, but the responsibility for monitoring compliance and follow through is still the corporation’s.

What happens when the corporation is sued and discovery reveals that data is included on those BYOD’s and some are former employee’s devices? Is the employee’s spoliation imputed to the corporation?

Under the newly passed 37(e), Federal Rule of Civil Procedure, has been watered down to excuse spoliation except under exceptional circumstances:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party;   or

(C) dismiss the action or enter a default judgment.

Many, including the rule revision committee, promote that spoliation should not be considered when caused simply by ordinary negligence.

  • Is it ordinary negligence to adopt a procedure such as BYOD that is largely adopted for the cost savings?
  • If appropriate procedures are alleged to have been in place for security and consent, does the requesting party get to conduct discovery on that issue?
  • Is the producing party duty bound to disclose their BYOD policy in Rule 26 meetings? If there is no disclosure, should sanctions be imposed?

Bring your own device is the formal policy. The informal policy happens in the companies who allow their employees to carry data to and from home, on trips, store to the cloud and access data from their home personal computers. Identifying this media for discovery is problematic since it is probably not referred to in a formal policy of BYOD. In addition, there is probably little, if any, regulation. In fact, this scenario posed to the corporation may receive a “none” and include an explanation that they prohibit their employees from this conduct. But, ask an employee – oh, yes, done all the time.

Using personal media devices may not be limited to only a formal BYOB policy and data on these personal drives may differ completely from that found on the corporate servers.

These are both perfect examples of why requesting parties should be permitted to inquire about the collection and culling processes? If discovery is produced, but no custodial collection was ever done – how do we know whether all versions of data or all data has been collected?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Searcy Denney Scarola Barnhart & Shipley | Attorney Advertising

Written by:

Searcy Denney Scarola Barnhart & Shipley
Contact
more
less

Searcy Denney Scarola Barnhart & Shipley on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.