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University of Texas Mobility Monday SeriesBRING YOUR OWN DEVICE (BYOD):
The Legal E‐Discovery, Regulatory, IT and HR Implications August 4, 2014
David Horrigan, Esq., 451 Research
451 Research
Global research analyst firm New York‐based division of The 451 Group 451 founded in 1999 Daily qualitative & quantitative research 1,000+ clients served Publications, analyst advice, global events
David Horrigan
Analyst and Counsel, Content Compliance & Legal Technologies, at 451 Research
Licensed to practice law in Washington, D.C.
Prior experience as in‐house counsel on technology and media issues and as a reporter for The National Law Journal and Law Technology News
BYOD: The Legal E‐Discovery, Regulatory,HR, IT Implications
•BYOD and the Changing Workplace
•BYOD in E‐Discovery and Case Law
•BYOD in Regulatory Actions and International Issues
•BYOD Best Practices
BYOD and the Changing Workplace
BYO is More Than Just Devices…
•BYOA: Bring Your Own Application
•BYOC: Bring Your Own Cloud
•BYOP: Bring Your Own Process
BYOD and the Changing Workplace
Big Data•The world created 23 exabytes of data in 2002
•We now create that much data every seven days
•90 percent of all data created since the beginning of time was created in the past two years
BYOD and the Changing Workplace
BYOD and the Changing Workplace
BYOD and IT
Penny Wise, but Pound Foolish?
BYOD and the Changing Workplace 451 Research Data
Overall Percentage of Respondents BelievingInformation Governance is Very Important at Their Organizations
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
The Snowden Effect‐‐or Lack Thereof
Dec. 2012 (42%)Snowden‐June 2013Dec. 2013 (42%)
BYOD and the Changing Workplace 451 Research Data
Importance of Information Governance and Size of Company
0%
10%
20%
30%
40%
50%
60%
70%
80%
Over 1000Employees
101‐1000Employees
11‐100Emloyees
1‐10 Employees
Dec. 2012Dec. 2013
BYOD and the Changing Workplace 451 Research Data
Importance of Information Governance and Job Function
0%
10%
20%
30%
40%
50%
60%
IT/Engineering Scientific Staff Mid‐LevelManagement
SeniorManagement
Dec. 2012Dec. 2013
BYOD in E‐Discovery and Case Law
Definition of Discovery
The pre‐trial devices that can be used by one party to obtain facts and information about the case from another party in order to assist the party’s preparation for trial.
•See also Deposition; Fishing trip or expedition
Source: Black’s Law Dictionary (6th Ed.)Note: The current edition (9th) is more diplomatic.
BYOD in E‐Discovery and Case Law
Breakdown of E‐Discovery Costs
Review 73%Processing 19%Collection 8%
Source: Rand Corporation
BYOD in E‐Discovery and Case Law
BYOD Case Law: City of Ontario v. QuonU.S. Supreme Court (2010)
•‘Quasi‐BYOD’: Employer‐Owner Pager with Personal Use
•Employer Reserved Right to Monitor Activity
•Formal ‘Computer Usage, Internet and E‐Mail’ Policy
BYOD in E‐Discovery and Case Law
BYOD Case Law: Riley v. California(See also United States v. Wurie)
U.S. Supreme Court (2014)
BYOD in E‐Discovery and Case Law
BYOD Case Law: Employer Liability
•Distracted Driving: Clo White Co. v. Lattimore•Mobile Devices, Commuting, and Scope of Employment
•Data Breaches: Resnick v. AvMed, Inc.• Liability for Data on Stolen Laptops
BYOD in E‐Discovery and Case Law
An Employer’s Right to Control Device Use
In re Guard Publishing Co. (Register-Guard), NLRB (2007)• Employers can prohibit use of company email system for
non-work activities if policy is facially neutral on Section 7 rights.
In re Purple Communications, Inc., NLRB (2014)• NLRB invites briefs on whether Register-Guard should be
overturned• NLRB asks whether employee personal electronic devices
affect the balance between employers’ rights to prohibit non-work activities and employees Section 7 rights
BYOD in E‐Discovery and Case Law
BYOD Case Law: Social Media
•No Reasonable Expectation of Privacy in Many Forms of Social Media
See State v. Harris
•However, No Fishing ExpeditionsSee Mailhoit v. Home Depot, USA, Inc.
•Follow Labor Law when Setting Social Media PoliciesSee In re Hispanics United of Buffalo, Inc.
•Your Lawyer Can’t Clean Up Facebook PostsSee Lester v. Allied Concrete Co.
BYOD: Regulatory Issues
FTC v. Wyndham Worldwide Corp.
BYOD: International Issues
Negotiations on the Future of the Safe Harbor
BYOD Best Practices
•Policies and Procedures
•Limited Support of Personal Devices
•Remote Wiping and Locking
•Education and Training