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Welcomed Draft Commentary from the Sedona Conference on BYOD

Many organizations struggle with whether to permit employees to use their own electronic devices (e.g., mobile phones, tablets, laptops) to conduct business on behalf of the organization.  In addition to discovery challenges in the event of litigation, the use of individual devices can also present significant security concerns and regulatory compliance issues.  In January, the Sedona Conference Working Group Series issued a public comment version of “Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.” Comments to the public comment version must be submitted by March 26, 2018.

As drafted, this Commentary addresses how creating and storing information on employee-owned devices can impact an organization’s discovery obligations and security goals.  In response to those concerns, the Commentary offers companies best practices, broken down into 5 principles.  Each principle contains additional commentary from the Working Group.  The five principles are:

  1. consideration of business needs and objectives, legal rights and obligations, and the rights and expectations of their employees;

  2. achieving business objectives while also protecting both business and personal information from unauthorized access, disclosure, and use;

  3. employee-owned devices that contain electronically stored information (ESI) should be considered sources for discovery;

  4. policy and practices should minimize the storage of, and facilitate the preservation and collection of, ESI; and

  5. employee devices that do not contain relevant ESI need not be considered sources for discovery.

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About this Author

Dena Castricone, Murtha Cullina Law Firm, Privacy and Cybersecurity Attorney

Dena M. Castricone is a member of the Long Term Care and Health Care practice groups.  She is the Chair of the Privacy and Cybersecurity practice group and the Chair of the firm’s Pro Bono Committee.  Prior to joining Murtha Cullina, Dena served as a law clerk to the Chief Justice of the Rhode Island Supreme Court, Frank J. Williams.

Dena’s long term care and health care clients compete in a constantly evolving industry, facing both rising administrative and regulatory burdens and shrinking reimbursement rates. She helps skilled nursing centers, physician groups, home health and...

Daniel Kagan, Murtha Cullina, health care attorney, regulatory compliance lawyer, reimbursement issue legal counsel

Mr. Kagan is an associate in the Health Care Group of Murtha Cullina.  He represents hospitals, physicians and other health care clients with a wide range of regulatory, compliance, risk management and reimbursement issues.

Prior to joining Murtha Cullina, Mr. Kagan clerked for the Honorable Lubbie Harper, Jr. and the Honorable Joseph H. Pellegrino of the Connecticut Appellate Court. 

Mr. Kagan received his J.D. with honors from the University of Connecticut Law School where he was a Notes and Comments Editor for the Connecticut Insurance Law Journal.  He earned his Bachelor of Arts in Economics from McGill University.