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Privacy, Possession & Preservation: E-Discovery Considerations For Pennsylvania Employers

Article by Courtney Brennan, Esq.

While e-discovery has always presented challenges, these challenges have become even more pronounced with the proliferation of company cellphones and bring your own device (“BYOD”) policies. From identifying the universe of relevant data to understanding how employees’ privacy rights come into play, employers facing litigation in Pennsylvania must carefully navigate all of the relevant issues in order to meet their discovery obligations without exposing themselves to potential claims.

If your company is facing litigation in Pennsylvania, what do you need to know about e-discovery in 2022? Below are some key considerations.

Electronically Stored Information (ESI) on Cellphones is Subject to Discovery

If your company’s employees use cellphones for business purposes, any ESI stored on their cellphones is potentially subject to discovery. The increase in smartphone usage for business purposes has sparked a trend of litigants filing broad discovery requests to secure the data on employees’ phones. Recognizing the burdens of complying with such broad requests and the likelihood that only limited portions of the data on employees’ phones will be relevant, courts in Pennsylvania have sought to strike a balance between the liberal rules of discovery and the need for a more practical and reasonable approach.

With that said, employers must still generally expect to disclose cellphone data during discovery. The courts have shown that they will allow discovery of cellphone data when discovery requests: (i) have a valid factual basis; and, (ii) are reasonable in terms of time, type of information requested and manner of discovery.

Employers Must Disclose Relevant ESI Within Their “Possession, Custody or Control”

Generally speaking, litigants in Pennsylvania have a duty to disclose all relevant ESI that is within their “possession, custody or control.” The definition of “control” varies by jurisdiction but often comes down to the practical ability to obtain the information requested. This is one area where the distinction between company-owned and personal devices can come into play. However, an employer’s policies may establish sufficient “control” over relevant data on employees’ personal phones to trigger a production obligation.

Employee Privacy and Company Device Policies

For employers, privacy is a key concern when examining employees’ smartphones (whether company-owned or personal) for e-discovery purposes. To protect themselves, employers should have comprehensive company device policies in place, and they should provide adequate training to ensure that employees clearly understand their obligations and rights (as well as any limits on their rights).

Preservation of Responsive Data on Employees’ Smartphones

To comply with their e-discovery obligations, employers must also ensure adequate preservation of responsive data on their employees’ smartphones. Failure to preserve relevant data can potentially lead to sanctions for “spoliation.” In addition to adopting relevant policies, employers should have a litigation hold notice drafted and ready for distribution, and they should identify personnel who can monitor and assist with compliance should the need arise. When taking action in response to anticipated litigation or in response to e-discovery requests, employers should document their efforts to adequately preserve relevant ESI as well.