Using Smart Phones in the Age of Electronic Discovery

In the days before the use of computers to store documents and the use of email to communicate became a way of life, conducting “discovery” – information gathering – during a lawsuit was fairly straightforward.  A written request would be made for documents fitting a certain description; and junior attorneys and paralegals would sit in warehouses or conference rooms sorting through the company’s paper files to decide which reams of paper would be produced in response.  In most cases, there would be little need to expand the search for responsive documents beyond the company’s own paper files.  It was uncommon, for example, for counsel to recommend sorting through the personal records of company employees to look for responsive documents.  Instead, all responsive documents were assumed to be stored in the company’s paper files.

Fast forward to 2011.

Now, in most industries documents are stored electronically.  Many of those documents may never make it into paper files.  And communications are sent by email more often than they are sent using U.S. mail, fax, hand delivery, or overnight delivery.  Moreover, since employees in many industries are expected to continue to conduct business from home during evenings and weekends as the need arises, a lot of business-related documents are being stored on personal computers, and a lot of business-related emails are going to employees’ personal email inboxes.  Even where email is sent to a company email address, an employee’s response that is sent via smart phone or home computer will not be automatically preserved in the company’s email system unless the smart phone or home computer has been configured to save the responses.    Similarly, an employee may work on a document using a personal computer away from the office and neglect to store the document (or the most recent version of the document) on the company’s computer system.

This trend of working away from the office using a smart phone or PC creates a host of issues.  Two of those issues are addressed here.  First, the employee’s use of his or her smart phone or home computer to conduct business means that the employee’s personal computer, smart phone, and any other personal electronic devices used to conduct business must be searched for records that may be responsive to any discovery requests that the employer may receive regarding matters handled by that employee.  This can increase the cost and complexity of discovery, and it will also invade the employee’s privacy.  A company’s failure to search individual employees’ electronic devices when conducting a search for responsive discovery documents can expose the company to sanctions for discovery abuse where there is good reason to expect that responsive documents are stored in the individual employees’ electronic devices.

Second, the employee’s use of personal electronic devices to conduct business may result in the company lacking the complete records that may be necessary to protect the company’s rights.  If, for example, an employee uses a personal electronic device to send the company’s supplier an email complaining about a product defect, but the personal electronic device has not been configured to save sent email to the company’s computer network, that crucial product defect email may be lost.  Or if the employee drafts a memo regarding product defects, but neither saves the memo to the company computer network nor puts a hard copy of the email in a file at the office, that memo may never be found by company management or company counsel.  And if the employee then leaves the company, the contents and existence of that memo may be lost forever.  Even if the employee stays with the company, if the employee’s smart phone or other electronic device is lost or destroyed before emails and documents stored thereon are preserved elsewhere, those documents and emails will be forever lost.

The solution to these issues is a simple one, but as a practical matter the solution may be difficult to implement.  Employees who are expected to conduct company business “after hours” or while out of the office should be provided with an electronic device such as a laptop or smart phone that is set up with the employee’s company-assigned email address, and that has been configured in such a way that “sent” emails are automatically stored on the company’s computer network (which should be password protected and regularly backed up).  Employees should be instructed in writing to only use a company email address for company business.  The company may also want to consider granting certain employees remote access to the company’s computer network and instructing those employees to store all company documents on the network.  Alternatively, employees can be required to only store documents on a company-assigned computer and not on a personal electronic device.  To encourage compliance, employees can be reminded that by following these steps they can protect the privacy of personal information that may be stored on their personal electronic devices.

If these simple procedures are adopted and consistently followed by employees, company records will be stored in the company’s computer database or at least on a company-owned computer, enabling the company to fully comply with records requests by checking its own computers.  As is noted above, these simple steps will have the added benefit of preserving employees’ privacy interests in information located in their personal email and personal electronic devices.

The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.  Counsel should always be consulted for advice regarding a specific situation.

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