Litigation Costs of BYOD Programs

While I hope no business reading this blog is or becomes the subject of a litigation, the reality is that litigation is an everyday occurrence for many businesses.  The costs of litigation can be crushing, and not just with regard to damages that may be paid in the event of an adverse judgment.  Rather the cost of running the litigation, itself, can be substantial.  In particular, identifying, gathering and producing evidence stored electronically (e.g., Word files, e-mail, instant messages, etc.) can run into the six and, possibly, seven figures in some cases.   It is that cost of responding to discovery requests in litigation that I would like to focus on in this entry – particularly as they relate to Bring Your Own Device (BYOD) programs. 

In general, the cost of responding to discovery requests relating to electronically stored information is a direct function of the number of devices, media, etc. involved.  If you have to review three servers and 100 workstations, that is one thing.  If you have to review three servers, 100 workstations, and 200 BYOD devices, that is something else entirely (and more costly).  My point is that BYOD programs have a hidden cost:  the increased costs in responding to discovery requests in litigation.  Each BYOD device may have to be reviewed to determine whether it contains evidence relevant to the litigation.  Such a review can be time consuming, costly, and may come as a shock to the employees that their personal devices are subject to search in the context of litigation.

While I am not saying that these costs, alone, should cause any business to decide against a BYOD program, they are an additional factor to be considered in determining whether a BYOD program is right for their organization.


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