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How Do “Bring Your Own Device” (“BYOD”) Policies Affect Discovery?

Posted on July 12th, 2014

“Bring your own device” (“BYOD”) is a growing practice of businesses allowing employees to use their own computers, smartphones, tablets, or other devices for work purposes. BYOD is making significant inroads into the business world. Around 75 percent of employees in high growth markets, such as Brazil and Russia, are using their own technology and devices at work. About 44 percent of employees in developed markets like the United States are already using their own technology and devices at work. Some surveys have even indicated that almost half of job seekers view an organization more positively if it supports their device.

So what are some of the potential issues relative to plaintiff electronic discovery that might arise from BYOD policies?

Two Sides Regarding Electronic Discovery and BYOD Policies

In Wayne Cotton v. Costco Wholesale Corp., (D. Kan. July 24 2013), a racial discrimination case, the court was tasked with identifying whether or not text messages and emails from Costco employees, sent on personal devices, would be discoverable. The court held that an employer did not have “possession, custody, or control” over text messages sent or received on their personal cell phones when there was no evidence that the employer had issued the cell phones to the employees, that employees used the cellphones for purposes related to work, or that the employer had any legal right to obtain the text messages on demand.

By contrast, in In Re Pradaxa (Dabigatran Etexilate) Product Liability Litigation, (S.D. Ill. December 9, 2013), the court sanctioned the employer for bad faith in discovery, specifically citing its failure to produce texts and to remove or halt the auto-delete function for texts on both employer-owned as well as employee-owned devices after instituting a litigation hold.

The Future of BYOD Policies

Developing case law provides no clear-cut answers for parties attempting to navigate the field of BOYD policies. However, one prominent issue that stands out will be whether one can show “possession, custody, or control” of personal devices that are used in the workplace. Another looming concern is the effects that bring your own device policies will have on proposed Rule 37(e).

It is predicted that by 2017, half of employers will require employees to supply their own devices for work purposes. Plaintiff electronic discovery will undoubtedly be affected by these developments, as the changes are already evident. Visit our plaintiffs’ blog or contact our team of like-minded experts to learn more about eDiscovery issues and the impact on plaintiffs’ litigation.

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