Linked – Texts Generate New E-Discovery Dilemmas for In-House Counsel

As more organizations switch to BYOD policies, where people use their personal devices to get work email, for example, this is becoming a real concern for me.

“No matter how in-house counsel choose to handle text messages, it’s wise to recognize employees’ privacy concerns, said Julia Brickell, executive managing director and general counsel at e-discovery and case preparation support provider H5. “There’s a very legitimate, real-life aspect as we’ve begun to merge our personal and business information in the same devices … and a lawyer wants to be sensitive to people’s feelings of privacy,” she said. “Perhaps more than in the old days, we have merged private with business. So sensitivity is in order.”

It’s complicated. Where do my Skype, SnapChat, texts, Facebook Messenger, etc. messages with coworkers fall? Are they personal, or business communication? Are they discovery if we talk abut work, but not if we talk about meeting up for lunch? Who decides this? What about professional contacts who don’t work for the same employer, or those messages work-related? What about if I talk to them about a job? Is that something that could be discovered as part of an investigation?

I’m just not sure, and it’s definitely uncomfortable to be honest.


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