Don’t Panic! Employees’ Smartphones and Litigation

Few will deny that the news media has a vested interest in ensuring they drive as much traffic to their sources of information (be they television, print, or online). Occasionally, the media takes a topic and blows it so out of proportion that it hardly warrants comment. On the other hand, sometimes they provide information that can cause the cautious business owner to take actions that are based more on fear than common sense.

NBC recently posted an article about companies’ employees using their privately-owned smartphones (i.e., iPhones, Droids, etc.) for work-related purposes. The thrust of the article focused on how those employees’ phones could be confiscated during litigation if the phones contained information that needed to be turned over to the other party. The article rolls out a technology law expert and serves up heaps of fear-based journalism.

While it is certainly possible that a court may require  a company to relinquish its employees’ phones, it is more important to know why this may occur. First, a primer in civil litigation: When a person (or company) feels like they’ve been harmed in some way by another person (or company), they can sue that other person. This is often called a “Petition.” Once a petition has been filed with the court, the person being sued is usually required to respond. This is called an “Answer.” Once the court receives the defendant’s (aka “Respondent”) answer, the parties then move on to what is known as the “Discovery Phase” of litigation.  During discovery, the parties engage in requesting information from each other. One of the parts of discovery that can be very onerous is “Production.” Production is where one party asks the other to turn over relevant documents, emails, photos, etc. The producing party must make a good faith effort to collect all of this information and provide it upon demand. These demands, however, must be reasonable and relevant. This is where we get to smartphones.

cell phoneThe reason smartphones dominate the business landscape is due to their unparalleled convenience in communicating by email, chat, etc. But what if an employee uses their own phone for business purposes? For instance, your salesperson uses her phone to email an invoice to a client for an order they placed.  The examples and uses are limitless. But what if those texts and emails contain “discoverable” information that needs to be turned over during production? This is where the reality of civil litigation comes into play.

For the vast majority of business and employees, the practical need to use their phones for business purposes FAR outweighs the detriment of having to relinquish the phones for litigation. It would be like refraining from using an umbrella because lightning may strike it; in the meantime, however, you are soaking wet whenever it rains. The reality is that even if those phones contain necessary information, the impulse to start rounding up phones is ludicrous. There are any number of steps that an employer can take before implementing a smartphone confiscation plan.

Most importantly, the company’s attorney will be working on this matter from the beginning (no company is too small to have an attorney; the Bexley Law Firm, LLC, for example, was created specifically to provide small business legal consultation to companies in the Gwinnett and Greater Atlanta areas). A competent attorney will object to a request demanding private cell phone information. Even if a court requires such information to be handed over, handing over the phones would be highly unlikely. That would be like demanding the photos to be turned over — and then demanding the cameras, too! The employees may have to give up their phones for an afternoon while an information technician pulls information off of the phone, which can then be done in waves depending on the size of the staff.

What is most important to remember is that although technology can make litigation more complicated or stressful, a good attorney in your corner will be there to ensure that the impact litigation has on your business is minimized and that your employees are protected from intrusive demands during discovery.

Robert S. Bexley, Attorney
Bexley Law Firm, LLC


The Paperless Office and a Litigation-Resistant Business

Before beginning, the Bexley Law Firm sends its deepest condolences and prayers to the Boston Marathon bombing victims and their families. In order to avoid scams masquerading as charities, follow this link to see how you can help.

11868876_a8d00459ab_zLast week, I discussed and praised the innovation of Office Depot and its paperless receipt system. I concluded the blog by teasing that this week’s post would be about the paperless office model and how that relates to a litigation-resistant business.

First, what do I mean by a “paperless office?” Wikipedia defines a paperless office as “a work environment in which the use of paper is eliminated or greatly reduced.” As the article explains, this is accomplished by digitally converting documents, forms, receipts and other paper records. A paperless office can save a small business owner significant money, boost productivity, save space, make documentation and information sharing easier, and keep personal information more secure.

Further, I coined the term “litigation-resistant business” to mean any organization which has taken an active role in reducing its general exposure to civil and criminal liability. A business can reduce its liability, and therefore increasing its resistance to litigation, in three steps: 1) Organization, 2) Education, and 3) Implementation. Future blog posts will explain these concepts in more depth, but suffice it to say that that a small business owner must be aware of his or her business’s unique circumstances that make it susceptible to litigation.

All businesses are in some degree of risk of litigation. Just as there’s no such thing as “a risk-free” investment, so too is a “litigation-free business” a figment. Risk and liability can be found in any number of sources. Examples of sources of risk and liability can be the particular nature of the business (i.e., a moving company is especially vulnerable to damaging a person’s property), a pervasive regulatory environment (i.e., a company that performs blasting activities at a granite quarry), or simply employee conduct or behavior (i.e., a disorganized office manager or a delivery driver with a prescription drug addiction). However, an organization can mitigate, or reduce, the chances of facing the costly ordeal of litigation.

A paperless office has significant advantages for maintaining a litigation-resistant business, but a few unforeseen disadvantages as well. Importantly, a paperless office DOES NOT mean a “recordless” office.  Quite the contrary. A paperless office ensures that its records are stored digitally, as opposed to in a filing cabinet. Because a business’s records are kept digitally (and ideally backed up using offsite cloud storage, such as Carbonite), a company has instant access to its important records. These records can help prevent litigation by showing that it filed a particular document on time, that it performed regular safety and health examinations of its equipment or work areas, or that it abided by any number of federal, state, or local regulations.

On the other hand, for a company that has questionable business practices, having easily accessed records may come back to bite them. During the discovery phase of litigation, for example, a business that regularly discriminates against a particular class of job applicant may be forced to turn over highly incriminating email correspondence showing a history of discriminatory actions.

For the vast majority of businesses, however, a paperless office confers far more benefits than not. From reduced operational costs, to ease of access of records, to reduced office clutter, a paperless office will put organizations of any size on the forefront of technology and provide them with an inherent competitive advantage over their competition

Robert S. Bexley, Attorney
Bexley Law Firm, LLC

Office Depot and Paperless Transactions

This post will be about how an office supply megastore can provide inspiration to small businesses.

But first, a story.  The Hero of this story is about a young attorney working for the United States Department of Labor. The Hero is performing heroic acts of heroism by ensuring America’s workers are able to work in safe environments and are able to come back home to their families with all the arms, legs, and heads still attached.  Hardworking mothers and fathers across the country loved the U.S. Department of Labor, even if they didn’ t know why. However, deep in the Haunted Swamp known as “Dee Cee,” a twisted cabal of warlocks and witches conspired to ruin America. The witches and warlocks argued and fought each other and through their loathsome scheming, they created a foul beast known as “Sequester” to ravage the countryside. Long story short, the Hero will lose his job and he decided to start his own firm and needed to become a notary because it’s a pain in the neck to find one on short notice.

So the Hero — that is, I — took my business to Office Depot. When you become a notary, the county only gives you a certificate for your license, but nothing else really (other than information). So, to get the actual seal, you have to go to an office supply store and they’ll produce a seal for you.  What is cool about Office Depot, and the belabored point of this blog post, is their receipt system.

Office Depot’s “Green” store in Austin, Texas.

(Photo credit: Wikipedia)

Full disclosure: I hate receipts. Seriously. I find holding onto scraps of paper for some phantom, future purpose is mind numbing. I know, I know, you need them in case you have to return something or for deductions.  But think about how many receipts you get on a consistent basis that you don’t really need.  These are wastes of paper, resources, and create clutter. But at Office Depot, you are given  three options: paper receipt, paper receipt and emailed receipt, or just email the receipt. I always choose the third option.

The paperless receipt option fits very well into my business model. Attorneys are notorious for being wasteful with office resources, such as paper, copies, etc. This wastefulness creates a great disservice to the client because it increases overhead costs, costs that ultimately get passed along to the client. Under the paperless model, an office reduces its operating costs by minimizing the amount of paper and ink. The Bexley Law Firm encourages not only law firms, but also small businesses, to think about the amount of resources used and how those resources will affect their bottom line. This is not to say, of course, that a business should not keep records. Proper recordkeeping is essential to having a litigation-resistant business.

In the next few blog posts, I’ll speak more about my philosophy on paperless recordkeeping and what it means to have a “litigation-resistent office.”

Robert S. Bexley, Attorney
Bexley Law Firm, LLC

Gwinnett Daily Post | Leaders find encouragement in community, even with failing mall

Gwinnett Daily Post | Leaders find encouragement in community, even with failing mall.

Gwinnett Place Mall continues to struggle to remain relevant despite the growing popularity of online marketplaces such as Amazon, Etsy, and Craigslist. Most retail giants like Target, Best Buy, and Wal*Mart even offer highly competitive online-exclusive deals, especially during the shopping season between Thanksgiving and Christmas.

It is no wonder, then, that traditional brick-and-mortar retailers, especially non-franchise mom-and-pop locations, must fight harder than ever before to gain new customers and retain the loyalty of existing clients. Most traditional retailers are facing the reality of  competing against lower prices (as a result of must lower overhead and often free of sales taxes), the convenience of online shopping, and increasingly cheap and efficient shipping options (Amazon Prime, for instance offers free 2-day shipping on most of its inventory).

Therefore, it is imperative that traditional retail and service providers embrace new technology and adapt to the changing commercial landscape. However, the decision to incorporate and integrate one’s trade into the digital age can be difficult and intimidating to some. Some of these decisions can have important legal implications and having competent legal counsel has never been more important.

In future blog posts, I will touch upon how the rapidly evolving world of e-commerce and new technology can benefit your business by expanding market presence, increasing sales, and enhancing productivity. Further, I will discuss any legal issues involved with these decisions.

Robert S. Bexley, Attorney
Bexley Law Firm, LLC