Discovery Obligations, Privacy, and BYOD: Identifying, Collecting, and Producing ESI on Employee-Owned Devices
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, January 3, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE will discuss best strategies for managing the risks associated with employees’ use of personal devices for business purposes, including governance and control considerations, litigation strategies, and 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 legal hold, the role of company bring your own device (BYOD) policies, recent guidance from government and regulatory bodies, recommended company policies, relevant case law, and solutions to recurring challenges.
Ms. Marty provides focused guidance on information governance and electronic discovery matters to the firm’s lawyers and their clients, including case and client-specific advice about meeting preservation obligations; "meet and confer" obligations; efficient and effective data harvesting strategies; data culling and cost reduction; review and production and implementation of cost-shifting; and motion practice. She frequently conducts internal training for firm attorneys on eDiscovery “best practices,” to ensure that the firm offers its clients consistent and competent counsel in the field of eDiscovery. Prior to joining the firm, Ms. Marty worked at a boutique litigation firm where she helped build an eDiscovery team within the firm. She oversaw eDiscovery strategies for complex litigation cases for multi-national companies in the banking, insurance and automotive industries. She frequently speaks on eDiscovery and litigation technology issues.
Ms. Tourikis is an associate in the Tech & Data group, focusing her practice on enterprise data risk management and information governance, data privacy, records and e-discovery. She advises large financial services institutions on enterprise data risk management strategies to manage legal and regulatory issues associated with both traditional and innovative techonologies and data sources.Ms. Tourikis' practice involves advising clients on lowering risk associated with using and storing information across jurisdictions. In her role, she counsels large financial institutions, on all aspects of data risk management and the discovery and management of electronic data, including: data migrations; technology implementation and management; the policies and procedures regarding the governance of information in various technologies; eDiscovery strategy and management; the use of data analytics for eDiscovery, compliance and risk management; the development of data source catalogues, disclosures, and responses relating to electronically stored information; and the remediation of legacy data (both paper and electronic).
Ms. Craparo is an experienced litigator whose practice focuses on complex commercial litigation, including professional services, banking and financial services, technology and telecommunications and electronic discovery. As part of her practice, she develops and defending electronic discovery and records management protocols. She represent and advise clients on all aspects of the discovery and management of electronic information including the development of policies and procedures for the preservation, collection, review and production of electronically stored information, the remediation of legacy data, and strategic positioning and defense of electronic discovery issues before federal regulators and the courts.
In today’s mobile world, it is possible that workers may 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 must be cognizant of this possibility and evaluate both proactive and reactive steps for managing the risks associated with workers using personal devices for business purposes.
An employer’s obligation to locate and turn over data in response to discovery or investigative requests may not be excused simply because the data is found on non-company devices. The law in this area is developing.
In determining a company’s obligations relating to relevant data on an employee’s personal device, courts consider many factors, including (1) whether the employer has possession, custody, or control of the personal mobile device; (2) the company’s policies and controls relating to the use of personal devices; (3) the willingness of the employees to cooperate; (4) the frequency of such use and the knowledge of the employer; and (5) an employee’s expectation of privacy in the ESI on his/her device. Employers face significant risks when accessing or processing data on an employee’s personal device, particularly in light of data privacy concerns and even more so in relation to government investigations. The burdens and challenges of collecting, reviewing, and producing ESI from a plethora of devices, of course, are obvious.
Listen as this esteemed panel discusses privacy and discovery issues arising from employee-owned devices and BYOD policies.
- BYOD discovery risks and challenges
- Standards for requiring/allowing search of personal devices in litigation
- Limits on a company's right to search personal devices
- Corporate policies for use of mobile devices
- Strategies for anticipating and responding to discovery requests
- Establishing a working process for tracking, preserving, and collecting documents
- Managing information and documents across multiple devices and platforms
- Documenting and managing e-discovery processes through workforce changes
- Recent decisions
The panel will discuss these and other key issues:
- To what extent can an employer monitor and obtain access to an employee's personal device?
- What should a corporate policy relating to the use of personal devices for business purposes look like?
- How does the company create and enforce a legal 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 personal device in a legal matter?
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