Texting and Using Personal Devices for Business

Employee use of personal electronic devices to communicate, and generate what it may be argued are business records, raises interesting issues for businesses, particularly in the face of threatened or pending litigation. Various policies, ranging from encouraging “bring-your-own-device” (BYOD) to outright banning it, have advantages and risks.

A court recently sanctioned defendants $931,500 for failing to preserve and produce employees’ text messages on company-issued and personal phones. The court noted that a company that issues a litigation hold to its employees must include text messages within its scope, so as to include work-related text messages on employee-owned personal cell phones.

In another case, the court imposed an adverse inference jury instruction because the Blackberries issued to defendants’ employees were wiped of e-mails, text messages, calendar items, contacts and attachments at a time when defendants had a legal duty to preserve evidence relevant to the litigation. The court noted that the absence of any text messages or e-mails on employees mobile devices should be a red flag for defendants during discovery.

Preserving employee text messages may be a logistical challenge, but in many cases the evidence preserved can be helpful. If the reality of your business is that employees will be using their personal cell phones for work, then it may be in your best interest to implement policies and procedures that provide the right to access, and if needed the ability to preserve, work-related information on employees’ personal devices.