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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Ex-Employee is Not Required to Produce iPhone in Discovery

Posted in Emerging Technologies, Litigation, Mobile, United States

A New York state appellate court recently ruled that a company does not have the right to access a former employee’s personal iPhone during discovery in employment litigation.

As a financial analyst for AllianceBernstein, L.P., William Atha used his personal iPhone to contact clients, and he stored some clients’ contact information on the iPhone.  Shortly after Atha left for another firm, AllianceBernstein sued him for breach of employment contract, alleging that he misappropriated the firm’s confidential information and used it to solicit clients for his new employer.

During discovery, AllianceBernstein sought Atha’s iPhone call logs.  The state trial court directed Atha to deliver his iPhone to AllianceBernstein’s counsel.  On November 15, the New York Appellate Division reversed the trial court, concluding that ordering production of Atha’s iPhone “is tantamount to ordering the production of his computer,” and that the iPhone “would disclose irrelevant information that might include privileged communications or confidential information.”  The appellate court ordered Atha to deliver his iPhone to the court for the judge “to determine what if any information contained on the iPhone is responsive to plaintiff’s discovery request.” 

This case offers a cautionary lesson as companies increasingly allow employees to access work networks on their personal mobile devices.  Many employers are mindful that such “Bring Your Own Device” programs could result in former employees having access to confidential information.  To address this concern, some employers reserve the right to remove all work data from an employee’s mobile device upon the employee’s departure from the company.  Mobile device management software often allows companies to remotely wipe information from employees’ devices.  These and other procedures should be addressed in written policies to ensure their enforceability.