Two years ago in this space we observed that personal devices were becoming part of the new discovery normal. Such devices, often managed by organizations as part of a “Bring Your Own Device” (BYOD) program, were—and are—increasingly used for work purposes and, thus, ever more likely to contain electronically stored information (ESI) potentially relevant to a litigation or investigation. In 2016, scant direction existed for organizations looking to structure a BYOD program with e-discovery requirements in mind, and there was even less guidance for courts confronted with requests for discovery of ESI on such devices.

That has changed thanks to a new publication from The Sedona Conference (Sedona), the leading think tank on issues relating to law and best practices on the discovery of ESI. Sedona has evolved the discussion of discovery of ESI from personal devices used for work with its publication, “The Sedona Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations” (the Commentary). The Commentary provides important guidance to organizations, practitioners, and courts, stressing the concept that personal devices used for work can be excluded from both preservation and discovery if an organization can reasonably conclude such devices do not contain ESI that is both relevant and unique.

The BYOD Commentary