As a Budweiser man often forced to hang out with wine drinkers, I love it when I hear the term BYOB. However, as discovery counsel working with companies to develop model electronically stored information (ESI) policies, I shiver when I hear the very different acronym, BYOD. Working with a company that has begun developing its own BYOD policy, however, can provide comfort from the chill.
BYOD—bring your own device—is a phrase that is widely used to refer to employees who bring their own computing devices, such as smartphones, laptops and PDAs, for use and connectivity on the corporate network. This trend has resulted in increased productivity, flexibility for employees and lower costs for businesses. As with any new trend, however, there are a host of issues to consider. It is imperative that your company begin to develop its own BYOD policy to stay ahead of the BYOD movement. In doing so, you should consider the following five issues.
3. Possession, custody and control
BYOD creates a host of e-discovery challenges that are likely to play out in the courts in the coming years. One of the most significant challenges is likely to be defining the ownership of data on dual-use devices. Under Rule 34 of the Federal Rules of Civil Procedure, a party must preserve and produce responsive documents and electronically stored information that are in its possession, custody and control. Courts have found that control does not require that the party have legal ownership or actual physical possession of the documents at issue. The documents are considered to be under the party's control when it has the right, authority or practical ability to obtain them from a nonparty. It is likely that an employer will have control over work product that employees create in furtherance of their employment. Under this rationale, employers will have to collect and produce corporate documents by request even if the documents are in the employee’s home.