Electronic discovery is a challenge. BYOD is a possible solution

Employers aren’t always able to prevent employees from using their own devices while on the job.  This can cause problems for a company’s legal counsel when a lawsuit involves electronic discovery of company documents. More and more these of documents are being created on personal devices and stored somewhere on the internet. One possible solution for companies might be to enter into agreements that make the employee’s personal device the employer’s device as well.

What is electronic discovery?

Electronic discovery, or e-discovery, takes place in the pre-trial phase of a lawsuit, when the parties involved request evidence from each other. Companies face three basic challenges when complying with an e-discovery request. The first is identifying and collecting all of the information that meets the criteria of the request. Success is largely dependent on the data retention and governance policies of the companies involved. The inability to produce the information requested in a lawsuit can result in heavy fines.

The second challenge is the actual processing of the information to meet the standards necessary for reviewing the information, which is the third and by far the most expensive of the three challenges. Most of the time the processing step involves carefully transforming the information to a standard image or document format like TIFF or PDF that teams of legal council associates spend days and even weeks reviewing.  While there is some software that can help with the review process, it is mostly a manually and tediously long process.

Costs of e-discovery

Complying with and executing an e-discovery request can be quite expensive. The Minnesota Journal of Law, Science and Technology found that e-discovery costs are in the range of $ 5,000 and $ 30,000 per gigabyte depending on a law firm’s rates.

You may recall the 2008 case between Qualcomm and Broadcom, in which a federal magistrate ordered Qualcomm to pay more than $ 8.5 million in sanctions when Qualcomm withheld tens of thousands of documents. Cases like that one have contributed in part to the double-digit growth of the e-discovery market. Gartner expects the industry as a whole to grow from $ 1.7 billion in 2013 to $ 2.9 billion in 2017. Costs associated with e-discovery have companies evaluating their information governance policies in an effort to better manage the associated expenses. But attempts to keep those costs in check assume that companies have access to the information involved in the lawsuit, which isn’t always the case.

Being able to access the information

Most of the costs estimates associated with collecting and processing data prior to review assume that a company has the electronic information in its possession, or at least has the legal right to access it. But what if the information resides on a device that the company doesn’t have direct access to — a company’s personal device, perhaps? InsideCounsel maintains that dealing with privacy and ownership issues will become increasingly challenging and costly as the number of personal devices in the workplace rises. One reason for that rise is that companies are looking for opportunities to allow their employees to bring their own devices to work.

Bring Your Own Device

Companies pay employees salaries that in turn are used to purchase personal smartphones, tablets and computers. Many of these companies also equip their employees with work-related smartphones, tablets and computers. So in a sense, companies are paying for two sets of devices for one individual. Why not just have employees bring their own devices to work and save the cost of having to buy twice as many devices? It sounds good in theory, but in in practice, things don’t always go as planned.

Not all Bring Your Own Device, or BYOD, policies are the same. Some companies prohibit employees from bringing their own devices in because it causes too much of a distraction. Others provide limited access to internet-based Wi-Fi that is separate from the company’s core network. But in order for BYOD to do what it was intended to, employees need to do real work on their personal devices – responding to email, editing documents and accessing company data. That’s where the challenges of e-discovery come to bear.

In a global survey, Fortinet found that 70 percent of personal account holders have used their personal cloud-based storage accounts for work purposes. This shows that smart devices are enabling a complex situation: Bring Your Own Cloud, or BYOC. That same survey of 3,200 employees ages 21 to 32 showed that 51 percent ignored their companies’ rules regarding the use of personal devices at work, and just did what they felt was necessary to get their jobs done. That attitude is one reason that companies are thinking about how to reconcile the risks of e-discovery with the benefits and convenience that BYOD has to offer.

Mandatory BYOD by 2017

In the near future, you might be required to have your own smartphone, tablet or computer. Just as employers are not required to provide employees with a means of getting to work, coming to work equipped with the tools necessary to do your job may soon become more commonplace in offices around the world. Historically, this is not that strange a concept: In the past, the person who owned the hammer and chisel was by default the town mason.

VMWare, Ingram Micro, and Cisco are among the companies that have already implemented such policies, and Gartner predicts that 50 percent of employers will require employees to supply their own devices specifically for work purposes by 2017. If done in the company’s best interest, each mandatory BYOD policy would also adjust the company’s privacy policy, as well as force employees to surrender their personal devices when it is legally in the company’s best interest to do so. In this way, mandatory BYOD policies could help manage the risk associated with complying with e-discovery requests when the data resides on an employee’s personal device.