Just twenty years ago, workplace communications largely happened either on phones physically located within the workplace, or on mobile devices whose ownership lay with the company itself. Things have changed.
These days, it's increasingly common for employees to utilize their personal mobile phones for workplace communication throughout the day. On top of that, many workplaces have implemented a BYOD (Bring Your Own Device) policy that means all or nearly all of the work is done on personal desktop or laptop computers, tablets, and other devices.
When a company becomes involved in litigation, a BYOD policy can lead to unique challenges when it comes to the discovery phase, and many employees currently utilizing their personal phones or computers for company business may balk at the seeming intrusion into their personal privacy.
What Happens in eDiscovery When Your Company Relies on Mobile Communication?
Collection is more complicated, with several unique challenges.
It's common for companies to underestimate the need to have a plan in place to handle access to needed data that may be housed on employees' personal devices. Should litigation occur, however, this can become a serious issue and not only lengthen the time needed for discovery, but also raise costs incurred.
Relying on mobile communications in the workplace poses several challenges when it comes to discovery, especially if employees are utilizing personal devices.
Some challenges include:
Accessing data that may have been deleted. Content and communications deleted off of mobile devices may not be easily recoverable, and potentially may not be recoverable at all.
File format challenges. Some file types common to mobile devices cannot be processed or would need to be converted to an alternate file type for review.
Audio or video files may increase costs and time investment needed. Audio and video files require a native review, which increases time and costs incurred.
A variety of required collection strategies. SMS or MMS (text and multimedia messaging programs), email, Internet browser histories, video, third-party applications, and audio or visual files must all be collected and processed differently.
Metadata challenges, especially for text messages. Since the metadata for text messages does not always include a record of when they were initially read, or some metadata may be lost if the text message was erased from a mobile device, extra time must be spent deciding whether or not the metadata is essential for the case.
As you can see, a BYOD policy without also ensuring data is secure and available if required could result in serious issues during the discovery phase in the event of litigation.
What Are Some Important Considerations When Planning for eDiscovery?
If your employees rely on personal devices, including mobile phones, desktop or laptop computers, or tablets, in order to perform workplace functions, it is essential to have a records retention policy and plan for what to do if your company becomes involved in litigation.
Before you begin implementing a records retention policy, you'll want to take a few things into consideration:
Is your plan customizable? Different brands of mobile device (such as Apple vs. Android phones) may need different steps taken in order to segregate company data from personal data.
Are you able to retrieve discoverable data from mobile devices? Many companies store workplace data in the cloud, so that employees are able to utilize their own devices without actually storing company data on them. Data stored in the cloud will be easier to access without worrying about overstepping personal privacy.
Do you know who in your company utilizes mobile devices? Whoever maintains your records retention policy should also have a list of employees who use personal devices of any kind, what kind of device they are using, and how they utilize them for work.
What is the full functionality of each device? Does data reside in the cloud or in physical devices? Can data be accessed via company servers?
Many news articles touch on the problems that come with nonstop connection to the workplace through our mobile phones and other devices, but very few have dealt with the risks that come with applying a Bring Your Own Device policy to the workplace. It's imperative to maintain an updated and well-enforced records retention policy that protects both the company and the privacy of the employee should litigation occur.
What's Your First Step Towards a Plan for eDiscovery?
If you are concerned about the potential for costly delays in eDiscovery, don't wait until litigation begins to start thinking about a records retention policy. Our own Adam Shirley is available to provide presentations on eDiscovery and the EDRM. Adam will come to your location to speak with your company about eDiscovery and how to apply the EDRM's best practices to ensure a more secure workplace. We'll even provide lunch!
Give us a call at (800) 313-5133 (or locally at (864) 467-1373) or contact us online at any time to request your FREE Lunch & Learn presentation from Legal Eagle.