BYOD, a company's right to protect and disclose data, and an employee's expectations of privacy are all colliding and creating a very sticky problem. Emotions run high when a conflict between employee and employer arises and when a company needs to look into an employee-owned smartphone or tablet.
When employers and employees make claims against each other, Sussman says, it often comes out in discovery that the employer has obtained copies of personal emails and other information from a device used as part of BYOD program.
"Where we see it play out is when the employer wants to introduce a piece of evidence, and the question is whether or not the employer had the right and authority to collect that information in the first place or exceeded their authority," she says.
BYOD Adds Twist to Discovery
Geoffrey Vance, another attorney at McDermott Will & Emery who heads up the discovery group, says he has cases where a company is being sued by a customer claiming damages from the company's product. The company needs to collect work-related data on smartphone and tablets that relates to the litigation.
"A lot of employees feel they don't have a choice and will sign anything that's put in front of them and take their chances down the road."
Moreover, judges assume companies have the capability to preserve and collect all information created in connection with work that relates to litigation, Vance says. They won't be happy to hear that such information exists but the company doesn't have access or authority to it, because there wasn't employee consent written into the BYOD policy. "That's a real tension," he says.
Containerization technology that separates business and personal apps and data on a single device, such as Samsung's Knox expected to be released later this year, can be a helpful starting point in not only ediscovery and meeting obligations in litigation but also asset control. The problem, of course, is that data has a way of getting tossed over the virtual wall.
Many Employees Will Sign Anything
On the other side of the argument, BYOD puts employees in a tough spot. Many feel pressured to waive their expectations of privacy when presented with a draconian policy, in order to not make waves in a tough job market. They see the General Counsel's actions a welcomed relief.
"The company wants them to use their own devices, and employees need to use them for their jobs. If the employee says no, they might not get hired or maybe even get fired," especially in situations where BYOD is mandatory, says attorney Paul Starkman, who heads the labor employment group at law firm Pedersen & Houpt in Chicago.
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