BYOD – Another reasonable basis for discovery about discovery

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?