As Cimplifi discusses, taming today’s modern data challenges requires an understanding of mobile devices and possession, custody & control.
In their post titled (wait for it!) Taming Modern Data Challenges: Mobile Devices and Possession, Custody & Control (available here), Cimplifi discusses how parties have a duty to preserve and produce electronically stored information (ESI) in their “possession, custody, or control”. This obligation is governed by rules like FRCP 26(a)(1)(A)(ii) for duty to disclose, 34(a)(1) for producing ESI, and 45(a)(1)(A)(iii) for third-party subpoenas.
However, the application of these concepts to mobile devices can be complex, particularly given the personal nature of such devices and the mix of personal and business data they may contain. One of the considerations related to mobile devices and possession, custody and control is relevance of mobile devices in discovery, as follows:
- Company-Issued Devices: If the company owns and manages the device, it will typically be considered under the company’s possession, custody, or control.
- Bring Your Own Device (BYOD) Devices: However, when employees use personal devices for work purposes, questions of control become critical. Courts often look at whether the employer has the practical ability to obtain relevant information stored on the device. With 84% of organizations having a BYOD policy, most devices fall into this category for discovery purposes.
So, what are other considerations related to mobile devices and possession, custody and control, including those for requesting and producing parties? Find out here, it’s just one click! The knowledge will be in your possession, custody and control when you do! 😉
So, what do you think? How is your organization taming modern data challenges in eDiscovery? Please share any comments you might have or if you’d like to know more about a particular topic.
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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.