Mobile devices are frequently used on construction projects. Whether these devices are laptops, tablets, cellphones or smart watches, a significant number of them are often owned by the people using them.
The general benefits and risks associated with companies adopting a “Bring Your Own Device” (BYOD) policy have been a topic of discussion for almost a decade now. Instead of focusing on the general benefits and risks, this article will focus on some the eDiscovery aspects of BYOD policies and practices.
There is a legal obligation to preserve potentially relevant evidence when litigation has commenced or is reasonably anticipated. This obligation can extend to evidence that is stored in the personal devices of the company’s employees. This raises employee privacy concerns and, in the US, has raised questions about whether the company has possession, custody or control of the data.
The Sedona Canada Principles Addressing Electronic Discovery, Third Edition, states, “If employees are using their own devices, BYOD policies are essential for the employer to gain access to the device for discovery purposes.”
It continues:
“Generally, BYOD policies or agreements indicate that the employee retains ownership of the device, while the employer retains ownership and control of business-related communications and the professional work product created or maintained on the device…The policy or agreement should specifically address scenarios where the employer may require and is permitted access to the device for legitimate work purposes, including but not limited to discovery.”
Even with a BYOD policy in place, further discovery issues can arise.
One of the advantages of BYOD policies is that people tend to purchase the newest devices available and use apps that they find most efficient and beneficial. This can lead to discovery challenges as the available collection and processing tools can lag behind new innovations.
A good example of this is text messaging. In the past, screenshots would be taken to capture the evidence. Now there are multiple software applications dedicated to the collection of text messages.
Even if there are tools available, collection can still be quite onerous. The employees’ devices might have to be shipped to a vendor or the vendor may need to meet with the employees to collect the evidence. This can pose logistical difficulties where employees spread out throughout the country.
Before collecting evidence from employees’ personal devices, consideration should be given to whether the evidence is available from other sources, such as company servers.
Principle 4 of the Sedona Conference, Commentary on BYOD Principles and Guidance for Developing Policies and Meeting Discovery Obligations, notes proactive BYOD management can reduce discovery costs by limiting the unique evidence from BYOD devices and suggests it is important to ensure that all company-related information is captured and retained on the company’s network servers or other centralized storage locations under the company’s control.
T. James Cass is manager, review services and senior counsel at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.
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