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Bring Your Own Device, or “BYOD,” is the phrase and acronym frequently used now to describe the ascension into the workplace of personal devices. It has escaped no one’s attention that pretty much anything that starts with a lowercase “i” — e.g., iPads, iPhones, iPods — dominates the marketplace of personal or recreational electronic devices, while Windows-based devices — desktop and laptop computers, Outlook and Exchange email servers, SharePoint — dominate the workplace. Personal devices, however, along with other personal means of storing and sending electronic data, are, like other social trends (can anyone say, “Karaoke night”) creeping into the workplace. As we shall discuss, this trend, amongst other things, creates great challenges to the production of e-discovery and reminds us of how e-discovery grew out of digital forensics and why the latter always will be needed to inform and direct the former.

The Bad Old Days/Good Old Days/Bad New Days

In the original bad old days, i.e., the mid-1980s through the mid-1990s, computers and other digital devices were rare in the workplace. At home, some people had computers (usually Macs, which were much more user-friendly and robust than were DOS-based Windows computers) and early cellphones. In the workplace, secretaries (remember secretaries?) may have had rudimentary PCs, which were always referred to as “word processors,” as that was their sole function. Computer memory was in the megabyte range and users installed applications on 5.25- or, later, 3.5-inch floppy disks, which usually wrote to other floppies, as the hard drive lacked sufficient memory to write to itself. As for the Internet, one connected to it via telephone modem and traffic on it was slower than going through the Holland or Lincoln Tunnel at rush hour. All but the smallest files were transmitted via “Sneakernet,” i.e., creating a file on one floppy and running to a second computer, where the user could copy the file to a second floppy. Any file of importance was printed out and stored in paper format.

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