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By Jeremy Applebaum

 

In January 2017, Samsung Electronics disabled the last of the recalled Galaxy Note 7 telephones.  This begs the question, do you really own your telephone, or does the provider own your telephone?  The same question may be relevant when your company is part of ongoing litigation.  Do you have control over your device and what is stored on it, or does your company?

When your employer is part of ongoing litigation, you may find yourself asked to provide your smartphone or tablet as part of an electronically stored information (ESI) document collection.   Are you required to hand it over?  If your company provided the device as part of your employment, the answer is simple.  Yes.  Yes, you are.  However, if it is your device that is for personal use as well as business use, the answer to this question may be less clear.

The 8-hour workday no longer exists for many professionals.  In its place, with technology, the workday exists for as long we allow it (or as long as our clients allow).   Do you own the work on your device by virtue of your ownership of the device?

What is Under Your Control?

The operating system for the recalled Galaxy Note 7 was housed on the device.  Samsung made it inoperable.  Samsung can do this because Samsung owns the operating system, even though you may own the phone.  The location is irrelevant.  In many cases, this logic applies to the work that you create and housed on your personal device.

The work created and housed on your personal device is ESI.  When you have been notified that your employer is part of ongoing litigation, and presented with a litigation hold request or order, you are responsible for preserving relevant ESI on your personal device (Living Color Enters. v. New Era Aquaculture, 2016 WL 1105297 (S.D. Fla. 2016).

What about your privacy?

This does not mean that all ESI is up for grabs.  Courts have recognized that employees have a certain expectation of privacy – especially when dealing with text messages housed exclusively on the device.  Some courts have found that some text messages on employee owned telephones are not discoverable because the employer does not have sufficient “possession, custody or control” over the messages.  Fed. R. Civ. P. 34.  However, this is not always the case.

The United States Supreme Court issued an opinion (unanimously) regarding the discoverability of cell phone data in Riley v. California, 134 S. Ct. 2473 (2014).  This case involved a criminal dispute, but the ruling has been cited in and applied to civil cases as well.  Generally, but not always, the civil cases interpreting and applying Riley have found that if the information contained on the personal device can be acquired elsewhere (company servers, cell phone companies, etc.), then the party requesting the information should gather the information from the other source.  In applying this case, courts have weighed the employees’ right to privacy against the requesting party’s need for the information.

The case law is clear on one thing – if you are using a personal device for business purposes, you should be prepared to provide this information.  It may not happen every time, as the case law shows, but to maintain a complete expectation of privacy simply because you own the device is unrealistic.

If you know your business allows employees to use their personal devices for work, having a policy in place managing that data is now a must.  This should include instructions regarding “holding” ESI once a litigation hold has been issued. As technology makes it easier for work to invade personal life, businesses must prepare and stay on top of these changes.  Understanding the ownership and privacy rights of the data is the first step.

 

Jeremy Applebaum

Jeremy Applebaum, eDiscovery Consultant

Jeremy Applebaum, a 2004 graduate of Cumberland School of Law, is an eDiscovery Consultant with Precision Discovery. He has successfully navigated cases ranging from personal injury to complex environmental contaminations and large product liability actions. Jeremy recognizes the importance of focused and productive discovery, and enjoys using his experience to guide others through this process.

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