As a number of recent headlines have focused on the apparent manipulation or destruction of mobile data, so too have courts put parties on notice about the legal pitfalls that come along with the convenience brought about the mobile revolution.
Businesses legitimately allow (or require) employees to use their own devices or software at work. The reasons for the practice can span from cost considerations to projecting a progressive company image, to name a few. And in cases where businesses do not allow such use, employees may still resort to BYOD (bring your own device) or use “shadow IT” (the unsanctioned software to perform work functions) out of necessity or convenience: from the employee on business forced to use a personal device when an enterprise technology fails in the wee hours of the night, to an employee who texts a co-worker on a personal device regarding business related matters.
Regardless of the expectations for BYOD, mobile devices complicate companies’ abilities to fulfill their preservation obligations in litigation or regulatory inquiries. For example, the Seventh Circuit has upheld punitive monetary sanctions for a defendant’s discovery abuses, including failure to proactively put custodians on notice to preserve relevant work-related text messages and for failing to suspend an auto-delete function for text messages on company-issued devices.[i]