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


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