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Don't say no to BYOD and personal clouds, but understand the legal risks when you say yes

Alan Brill, Senior Managing Director, and Jonathan Fairtlough, Managing Director, Kroll | Dec. 6, 2013
It is important for IT leaders to discuss about BYOD, personal cloud and related corporate policy with their company's senior leadership and in-house or outside counsel to ensure that anything that could affect legal discovery is handled properly and to help mitigate the risk of severe penalties that could be imposed by judges for discovery failures.

* Co-mingled business and personal files can create hurdles for discovery. Some people use personal cloud services and BYOD to store both personal and business-related information. Without appropriate employee agreements requiring cooperation with discovery and investigations of personally-controlled clouds on work-associated devices, this can become a highly contentious issue.

Employees may have highly personal even privileged and legally protected information stored on these services/devices, and these protections may have to be honored when it comes to discovery. It is an area in which courts have differed in their views.

In one recent high profile case, a court ordered that an independent expert be brought in to provide access to employee files on non-company cloud services. It was the expert's responsibility to identify and extrapolate only those documents that bore relevancy to the case for approval by the judge and review by supporting counsel to determine if any of the documents were protected under attorney-client privilege. Only then were the documents turned over in discovery. Such a process may be tedious but may work well for disputes involving personal information on BYOD devices and in personally controlled cloud storage.

In the coming years, court decisions are very likely to provide more exacting guidance on the cloud and BYOD, but businesses have obligations now in terms of e-discovery that must not be overlooked. Courts are issuing rulings that include significant penalties where discovery obligations aren't met. Companies that have integrated the use of personal cloud services and BYOD into their discovery and contingency plans will be much better prepared to fulfill their obligations.

Does this mean that companies should just ignore demands of users and the potential that BYOD can bring in increased productivity and cost sharing?

No. It requires understanding the challenges and a willingness to not only implement new IT solutions, but to invest the time and the management resources to verify that the solutions actually meet the needs of the firm. Counsel must be involved in this ongoing process.


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