“Bring Your Own Device” Programs: Employer Control Over Employee Devices in the Mobile E-Discovery Age

by Danielle Richter

Representing or prosecuting business clients who allow employees to bring their own devices to work presents a unique challenge to a presently undeveloped area of the law. This challenge has created a national split among district courts. Two widely-cited cases within this context are In Re Pradaxa and Cotton v. Costco Wholesale Corp. This article analyzes both decisions and addresses  the ultimate question: Are employers considered to be in control of employee personal devices for purposes of litigation?

Within the past decade, discovery of electronically-stored information (“ESI”) on employee laptops has become common practice. However, with technological increases and the growing appeal of mobile devices, employees now want to use their tablets, smartphones, and other devices at work.  Modern technology allows for greater productivity as employees can access company information at any time, in any place.  In fact, many would agree that the smartphone itself has become “an extension of its user,” nearly eliminating the need for laptops and desktop computers. While the ease of new technology is appealing, it also brings with it new challenges to the discovery process when these devices are involved.

 

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