In a recent article in Inside Counsel, the author tackled the pitfalls of BYOD (bring your own device) policies, and permitting employees to communicate by text messaging generally. While BYOD policies permit employees to be responsive to their co-workers and clients by text messaging from their personal phones, they also create a host of e-discovery challenges when those text and email messages on the employees' personal devices become relevant to a litigation matter and are outside the employer's reach.
Companies need to mitigate the risks of BYOD policies by addressing email and text message retention requirements in their computer use policies; by placing restrictions on the subject matter of any text or email message that may be work-related or directed to a client; and by ensuring that any attorney-client privileged or other sensitive communications are sent using the appropriate level of security and retained in the company's systems. To the extent permissible under local or state law, companies also should provide in their policies that they have the right to access work-related text and email messages on employees' personal devices. Ultimately, the best way to ensure compliance is to restrict the types of communications that should be sent using personal devices versus the company's systems to routine communications that should not have any greater implications for future litigation.
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