Discovery Obligations, Privacy, and BYOD: Identifying, Collecting, and Producing ESI on Employee-Owned Devices

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Tuesday, January 3, 2023

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 16, 2022

or call 1-800-926-7926

This CLE will discuss best strategies for identifying, collecting, and producing ESI on employee-owned devices while protecting and respecting employee privacy. The panel will review a company's duties under the Federal Rules, factors that influence whether information on an employee-owned device is discoverable and subject to a litigation hold, the role of company bring your own device (BYOD) policies, new guidance from the Department of Justice that arguably increases burdens, recommended company policies, relevant case law, and solutions to recurring challenges.

Description

Most workers use their personal devices, such as phones and computers, for work, making them a potential source of discoverable ESI in litigation or investigations involving their employers. Yet, these devices are also full of sensitive, personal, and legally irrelevant information. Employers cannot just seize an employee's personal device and search it without consent from the employee.

That ESI is stored on non-company devices normally does not excuse the employer's obligation to search them and turn over responsive data. And, a 2022 DOJ Corporate Crime Advisory Group Memo (the "Monaco Memo") states that the DOJ expects companies to retain and disclose employee personal device data in investigations or else face severe consequences.

The law is not well developed in this area. In determining if a company has complied adequately with discovery requests, courts focus on (1) whether the employer is in possession, custody, or control of the personal mobile device; or (2) a custodian's expectation of privacy in the ESI on his/her device. If employers have employee consent, risks and duties may accompany such control. The burdens and challenges of collecting, reviewing, and producing ESI from a plethora of devices are obvious.

Listen as this esteemed panel discusses privacy and discovery issues arising from employee-owned devices and BYOD policies.

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Outline

  1. BYOD discovery risks and challenges
  2. Standards for requiring/allowing search of personal devices in litigation
  3. Limits on a company's right to search personal devices
  4. Corporate policies for use of mobile devices
  5. Strategies for anticipating and responding to discovery requests
    1. Establishing a working process for tracking, preserving, and collecting documents
    2. Managing information and documents across multiple devices and platforms
    3. Documenting and managing e-discovery processes through workforce changes
  6. Recent decisions

Benefits

The panel will discuss these and other key issues:

  • To what extent can an employer monitor and have access to an employee's personal device?
  • What should a corporate policy for gaining access to personal devices look like?
  • How does the company create and enforce a litigation hold on personal devices?
  • What is the effect of an employee's good faith effort to address technical problems on a BYOD device that may result in a hard reset or device wipe?
  • How do the European data protection laws impact an order from a U.S. court that employees of foreign companies turn over their BYOD in litigation?

Faculty

Marty, Gretchen
Gretchen N. Marty

eDiscovery Counsel
Littler Mendelson

Ms. Marty provides focused guidance on information governance and electronic discovery matters to the firm’s...  |  Read More

Tourikis, Kiriaki
Kiriaki Tourikis

Attorney
Reed Smith

Ms. Tourikis is an associate in the Tech & Data group, focusing her practice on enterprise data risk management and...  |  Read More

Walsh, Samantha
Samantha M. Walsh

Attorney
Reed Smith

Focusing her practice on enterprise data risk management and information governance, data privacy, security,...  |  Read More

Attend on January 3

Early Discount (through 12/16/22)

Cannot Attend January 3?

Early Discount (through 12/16/22)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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