It’s a fact that we live in a litigious world. Bring Your Own Device (BYOD) and even corporate-owned mobile devices often are caught up in legal cases. I spoke with Chris Gallagher, national director for Adecco eQ, a nationwide eDiscovery firm to get an overview of how businesses can navigate eDiscovery when a business has BYOD devices seized as part of a court case.
eDiscovery and mobile devices
BYOD and corporate-owned devices can be put a litigation hold (sometimes called a “preservation order”) when an organization must preserve all forms of relevant information when there’s the anticipation of litigation.
Gallagher’s firm helps legal counsel with data forensic collection, acquisition on mobile devices and PCs. His company processes the data on these devices and uses advanced analytics to locate information pertinent to the litigation
eDiscovery and BYOD: The blurred line
BYOD is still, from a legal perspective, in its infancy, Gallagher said. He said every time his firm does a customer survey, they still hear about strong BYOD activity in the market.
He said, “Of course, from a discovery perspective, from a litigation hold perspective, it makes both the general counsel’s life that much more difficult as well as the law firm’s life more difficult because number one, there’s that blurred line, what is corporate data versus what is personal and individual data, where does that line cease?”
Gallagher points out that anytime you have devices entering and leaving a network there’s a control factor. Companies who master that control have a better (but still not perfect) time when they get called into discovery.
“When you have a device that is not a corporate-owned device that is accessing corporate information, the ownership of that information always comes into question,” Gallagher said.
“When dealing with eDiscovery, part of discovery requests are information that is under your direction and control,” he said. “It’s on a personal device, it’s not owned by the corporation, but it’s corporate-owned data, so is that under your control? Absolutely.”
Litigation holds on BYOD devices can be an added nuance and one more gray area that corporation have to deal with when it comes to BYOD in their enterprise.
Gallagher said you need to ask, ” How do you get that data back? How do you ensure that you’re not losing, not only from a litigation perspective, but the other major issue is corporate information, trademark secrets, corporate secrets, confidential information that you wouldn’t want to enhance?”
He further explained that a litigation hold over a BYOD devices means going beyond the normal things like a desk drawer, files, email, and shared devices. It means you have to ask “Okay, what else have you used to access the corporate network in the last year?
Wearables and eDiscovery
Wearable tech would have minimal impact on eDiscovery. Gallagher said, “Now, if you’re a corporate attorney, if you’re a defense counsel, one of the things you’re going to argue is “Well, the watch, everything that’s available on the watch, it’s just email, weather, that’s available on the server anyway, so you have another place to get it.”
The wearable is a highly discoverable type of device because most of that information is just replicating from somewhere else, Gallagher said. Usually, you are replicating wearable data from your phone so if you have the phone then everything’s replicated.
“For smaller cases, for cases at a location, for criminal cases, or matrimonial cases, where location is important, wearables could come into play,” he said.
Onboarding BYOD devices and eDiscovery
Much of what Gallagher said around BYOD policies is standard fare. I asked Gallagher how a company could protect themselves in the cases of salespeople (the “original BYOD”users) contracts and non-compete agreements. Competitors in highly competitive industries sue each over this kind of stuff all the time.
Career salespeople have their contacts (built from years of selling in an industry) that they keep on their phones. They may have sold to these customers over the years.
From a legal perspective in this scenario, Gallagher recommends that corporations have an addendum added to their standard employment agreement. The addendum should state, “I certify that I am not bringing anything from my former employee. We are hiring you for your knowledge of the industry in general and not any specific contacts that you may or may not have from former employees.
Gallagher said this sort of contract boilerplate puts the responsibility on their shoulders and that you aren’t hiring them for a particular contact.
He also advised that you want to make sure that they abide by their previous non-compete, but you don’t want them downloading or taking anything with them from their previous employer. Gallagher cautioned that you should not place any data from their previous employer on your corporate-owned system. Take, for example, syncing a personally owned smartphone to a corporate-owned laptop. Along with that sync can come corporate data from your competitor. eDiscovery can detect that data.
He further recommends that you have that new sales rep come to you with a clean slate of a cell phone.
Bringing contacts along on a personal device has become much easier legally speaking according to Gallagher. He said, “One of the recent things that’s come out of court cases is if you look at LinkedIn profiles, if you look at customer information but the sales rep proved that most of the information that he had from his ‘client’ was available publicly on their LinkedIn profiles.”
You don’t want them backing up their tablet to their new computer that could result in a breach of their non-compete, and now it’s backed up on your servers according to Gallagher.
Above and beyond the usual BYOD and challenges that enterprises face each day, you may also be navigating a blurred legal line so prepare yourself accordingly with BYOD policies and advice from your counsel to ensure that you are prepared if and when BYOD devices get put on a litigation hold.
Have you ever had BYOD devices seized as part of a legal case? Describe your experience in the comments.