This is part two of a three-part series on developments in mobile device discovery and its impact on the lives of in-house counsel. The first, “Bring your own discovery nightmare: Inside counsel in the BYOD era,” was published by Inside Counsel on Sept, 6, 2013.
A recent Corporate Counsel survey of technology used in corporate legal departments pronounced that “mobile is here, and it's hot” and that “it ... may be steering law departments toward trouble." It revealed that 76 percent of respondent organizations allowed their legal staff to use their own mobile devices for work. This should not be surprising, considering that, according to anecdotal evidence easily retrieved in practically any public space anywhere, approximately everyone has a "smart" device of some sort today. What is surprising, however, is that nearly a quarter of those responding said that their legal department had no policy in place covering the use of these devices.
From another angle, imagine that your own employee quits. She goes to work for a competitor who announces a new product that looks a lot like the product she developed while working for you. Meanwhile, she left your network, taking her iPhone with her. So you start asking questions. Information starts flowing in through the grapevine with specific references to work-related documents that are not readily available on your system and to text messages between employees regarding possible (likely) litigation. These documents and texts are not in your DMS or on her former hard drive; they’re on the iPhone.
But wait — remember that you read the first article in this series and, afterward, immediately implemented an air-tight BYOD policy on which all employees signed-off. The policy states that any company-issued mobile device or any personal device granted access to the company network or to documents created within the company network must be submitted for forensic imaging upon termination of employment. Of course, in the case of a personal device, the analysis of the image would be limited to the extent that data contained on the device might be relevant to any legal proceeding. Privacy rights must be maintained as to otherwise personal information, but you can get the documents and texts you need off the phone! You relax. You take a deep breath. “It's ok,” you think. “We can get the phone.”