Business Litigation Alert: "Deflategate and Litigation - Lessons for Businesses"

Whether or not you’re a New England Patriots fan, the news about “Deflategate” seemed to be everywhere, along with opinions regarding the severity (or lack thereof) of the punishment. 

One aspect of the “controversy,” however, received little, if any, attention: NFL investigators were able to uncover a good deal of information about who knew what, and when, via litigation e-Discovery tactics – culling information from the Patriot employees’ personal cell phones.

The Patriots investigation highlights the issues surrounding utilizing personal devices for work purposes.   It has become a common practice that can lead to some repercussions if the proper guidelines are not in place (even Hillary Clinton has seen the implications of utilizing personal email accounts for work).

If a personal device is used for work purposes, that device and the data stored on it is still subject to discovery.  Therefore, there must be clear guidelines in place for employees to follow.

  1. Storage: Because data from personal devices used for work must be retained, it should not live only on the personal device.  It should be stored on a company system so that it is readily available if necessary.
  2. Expectations: How much privacy can an employee expect when they use their own device for work? Employees should have a clear understanding of their expectation of privacy.  By using a personal device for work purposes, their personal information could also be accessed.  They should clearly understand that this.
  3. Collection Plan: Any company that allows the use of personal devices in the workplace should have a plan firmly in place to collect data from personal devices if necessary (e.g., in connection with an internal investigation or litigation).  You should not be scrambling to collect this data should you need to access it quickly.   

Having policies in place to help manage the use of personal devices in the workplace goes a long way towards protecting a company should an investigation take place or a lawsuit get filed.  Create and implement those policies today as the use of personal devices will only become more commonplace moving forward.

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