Employer E-Discovery Duties Expand in a “BYOD” Environment Re: Employee Devices

In this National Law Review Article, author Mark F. Foley addresses the unique challenges that BYOD presents to companies engaged in litigation. The author notes that under both state and federal rules of civil procedure, companies engaged in, or anticipating litigation, are under an obligation to identify, retain and eventually produce responsive information in their “possession, custody, or control.” The author also indicates that Courts have interpreted control to “include both the legal right and the practical ability to obtain information from a non-party.” The author presents a number of challenging questions regarding a company’s discovery obligations in light of its legal right and practical ability to obtain BYOD stored information. The author also addresses the affect the specific technical implementation of a BYOD environment can have on electronic discovery processes. The article notes that whereas some Courts are reluctant to find that data on employee owned devices is within the companies direct control, in the Pradaxa (Dabigatran Etexilate) Products Liability Litigation the Court “came down hard on the on the side of requiring litigants to identify, protect, and produce such information.” The author advises that the best approach includes clear BYOD policies and signed consent forms allowing access to employee owned devices when necessary. The article also notes that those companies who do business in foreign countries or in regulated industries will need to ensure that their BYOD policies are in compliances with the applicable laws and regulations.

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