By: Steve Silverman
In the wake of the Florida Supreme Court‘s changes to the Rules of Civil Procedure to address electronic discovery, let’s look at one vastly overlooked area of discoverable ESI – hand held devices such as smartphones and tablets.
In a day where every employee has a smartphone, an iPad or a personal computer, and where employees routinely use these personal devices to conduct business, it is important for employers to review their policies regarding litigation hold procedures to make sure hand held devices are taken into account.  
Once a company learns that litigation is pending or anticipated, there is a duty to preserve documents that may be discoverable in litigation.  Accordingly, it should already be standard operating procedure for employers to alert their IT departments to take steps to preserve all potentially discoverable electronic data.
But today, with a vast amount of discoverable electronic data existing on devices outside of the employer’s control, once litigation is on the horizon employers must put employees on notice and require that custodians who might have discoverable ESI on their personal smartphones, tablets and personal or home computers take steps to preserve the data on those devices that might be relevant to the litigation.  It is likely only a matter of time before a text message stored (or deleted) on an employee’s iPhone becomes the focal point in a lawsuit.  In order to keep pace with the ever-changing world of ESI discovery, employers should periodically review their litigation hold procedures and  create a plan for how they will notify employees of litigation holds and how employers will respond regarding their personal devices and data.  Having such a plan in place now will prevent issues such as discovery disputes and, possibly, sanctions down the road.
For more information about structuring a policy for preserving litigation-related information, or if you have questions about ESI-related issues, please contact Steve Silverman, Chair of Kluger Kaplan’s ESI Discovery Group at 305.379.9000.
Steve Silverman, Esq. – Chair, Kluger Kaplan ESI Discovery Group
Marilyn Kohn, Esq.
Michael Landen, Esq.
Jonathan Korin, Esq.
Matthew Tuchman