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Business Crimes BulletinFeaturesE-DiscoveryRegulationWhite Collar Crime

Common Pitfalls In Personal Device Collection

By Marjorie Peerce and Marguerite O'Brien
April 01, 2024

Litigants increasingly face subpoenas or discovery requests for forensic collections of text messages. The increasing frequency of "bring your own device" policies creates serious implications for subpoena recipients and litigants to ensure compliance with these demands. And courts across the country consider such personal mobile data fair game. To avoid pitfalls — and sanctions — counsel must take proactive steps to ensure proper preservation and collection of personal mobile data and verify that clients comply.

Entities should also review their policies to ensure that they prohibit conducting company business on personal devices and provide for the company's right to image personal devices if they do contain business communications. Both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have made it clear that they will look at company policies when assessing how to resolve matters under their purview.

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Interview Custodians About Their Use of Personal Devices

Let's say Company X receives DOJ grand jury and SEC subpoenas seeking, among other things, communications about transaction Y. You are retained to represent the company in connection with responding to those subpoenas. In addition to issuing a broad litigation hold to all individuals potentially in possession of relevant documents and tangible things, you should meet with "key players" at the outset of the case to advise them of the duty to preserve and ensure proper collection.

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