Litigants increasingly face subpoenas or discovery requests for forensic collections of text messages. The increasing frequency of “bring your own device” policies creates serious implications for subpoena recipients and litigants to ensure compliance with these demands. And courts across the country consider such personal mobile data fair game. To avoid pitfalls — and sanctions — counsel must take proactive steps to ensure proper preservation and collection of personal mobile data and verify that clients comply.
Entities should also review their policies to ensure that they prohibit conducting company business on personal devices and provide for the company’s right to image personal devices if they do contain business communications. Both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have made it clear that they will look at company policies when assessing how to resolve matters under their purview.
