Most businesses understand that relevant electronically stored information found on company-owned hardware and software may become key evidence if the company finds itself embroiled in a lawsuit. Email, for instance, chronicles the daily activities of a business both internally and externally and can prove critical to the success of a party’s claims or defenses. It may come as a surprise to some to learn that collecting and producing data from an employee’s personal mobile device may also be the responsibility of the company as a party to litigation.
Increasingly, courts are examining whether they should require a party to produce data such as text messages and emails from its employees’ or agents’ personal cell phones and, on the other hand, whether the litigating company can be sanctioned for the failure to preserve such data.
Federal courts, including those in Pennsylvania, have addressed bring-your-own-device (“BYOD”) policies through which companies allow or require employees to use personal mobile devices to transmit work-related information. In several of these cases, courts have relied on formal and informal company policies as the basis to order companies to obtain and produce data from a mobile device owned by an employee. For example, in adopting the recommendation of a special master, Judge Schwab in the Western District of Pennsylvania concluded that the plaintiff company must obtain and produce data from certain of its employees’ cell phones.[1] The company’s BYOD...
