Bring Your Own Device: How BYOD Complicates Delivery
POSTED ON December 09

Imagine if a parcel delivery service did not own its own trucks, but asks its drivers to use their own. One driver is in a minor collision. The vehicles sustain little damage, and neither the police nor the delivery service are notified. Soon after, the driver sells her truck for parts and buys a newer model. Then the driver of the other car sues the delivery service. How can the delivery service defend itself without the physical evidence? How could the company even start to retrieve all the pieces of the driver’s truck? This scenario provides a taste of the issues facing employers who allow (or require) their employees to use personal mobile devices. “Bring your own device” (BYOD) refers to employees using their personal mobile devices for corporate communications. Many companies saw BYOD as a way to reduce connectivity costs while enhancing morale, but the outcome is mixed at best. Corporate costs have not necessarily decreased, and employee use of personal devices raises issues of lost time, and claims of unpaid overtime for after-hours contacts. The complexity mounts when litigation occurs. Assume the delivery service requires drivers to use their personal cell phones while making deliveries. A driver posts updates about his location to social media throughout the day. He is later terminated for failing to make critical deliveries, and sues for wrongful termination. Or assume a pedestrian claims the driver struck and injured her. The social media record would show that the driver was nowhere near the pedestrian at the time. In either case, the going gets tough if the driver deleted social media entries. As Kelly Twigger discussed in her recent Germane Shepherd interview, these issues are hitting the courts. In Gatto v. United Air Lines, 2013 WL 1285285 (D.N.J. 2013), a ground supervisor sued over injuries from a work accident. The defendants sought access to the plaintiff’s Facebook account, thinking that his posts would disprove the extent of his claimed disability; however, the plaintiff deactivated his Facebook account. The defendants sought sanctions for spoliation based on the deactivation, and a jury instruction putting the deletion in a negative light.

  1. The federal trial court cited four factors to be considered in spoliation cases:
  2. The evidence was within the party’s control.
  3. The evidence was actually suppressed or withheld.
  4. That evidence was relevant to the matter.
  5. It was reasonably foreseeable that the evidence would be raised in discovery.

The court found that the first, third, and fourth factors were present, leaving the issue of whether evidence was actually suppressed. The plaintiff claimed that loss of data was unintentional, but the court disagreed, and approved a negative jury instruction. It’s not always employees who delete Facebook evidence. In Katiroll Company v. Kati Roll and Platters (I had to look up katirolls—they sound delicious!), 2011 WL 3583408, the parties disputed trade dress rights. During discovery, a court order gave the plaintiff the right to take photographs of the defendant’s trade dress, but the defendant started painting before the plaintiff could take the pictures. The plaintiff sought photographs of the restaurant pre-painting seen on social media, but the defendant had deleted those images from Facebook. Rather than impose spoliation sanctions in this case, the court opted for a more moderate solution—the defendant would repost the offending photos for a short time so the plaintiff could copy the files. (Amusingly, this case also includes an exhortation to the parties’ attorneys to behave more professionally. It’s a katiroll-eat-katiroll world out there!) The different outcomes hinge on the parties’ intentions. In Gatto, the court didn’t buy the plaintiff’s argument that he accidentally deleted his Facebook account while his case was ongoing. In Katiroll, though, the Facebook account still existed, and the defendant originally removed the images because of the plaintiff’s take-down request. There was no intent to deprive the plaintiff of evidence. These cases only scratch the surface. Privacy rights and corporate interests must be balanced in this evolving legal environment. BYOD’s prevalence presents serious challenges for lawyers and eDiscovery professionals as they seek critical data. We will review further legal aspects of BYOD in upcoming posts. In the meantime, please contact us if you have BYOD questions.

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.