Mobile Data Maze Confronts Legal Teams in BYOD-Driven Workplace

The explosion of mobile applications, cloud-based platforms, and digital communication tools has increased the volume and complexity of employee-generated data.

Messaging apps, collaboration tools, and email platforms are now integral to daily operations—and much of this data lives on personal smartphones due to the widespread adoption of Bring Your Own Device policies, which allow employees to use their personal devices for work purposes.

While such policies offer flexibility and cost savings, they also blur the line between personal and professional use, placing critical business communications, intellectual property, and potentially litigation-relevant evidence on devices outside the employer’s direct control.

This shift presents both opportunities and challenges for legal teams tasked with managing data in internal investigations, litigation, and compliance efforts.

Personal Device Data

Organizations may have legitimate reasons to access data on an employee’s personal device, including preserving relevant information for litigation holds, conducting internal investigations into misconduct or harassment, protecting intellectual property and trade secrets, and ensuring productivity and compliance with workplace policies and regulations.

In industries with strict regulatory requirements, employers may need to monitor personal devices to meet data retention and oversight obligations. Understanding how and when to access employee device data is essential for legal teams seeking to preserve evidence, resolve disputes, and mitigate risk.

Legal Boundaries

Key federal statutes such as the Electronic Communications Privacy Act, the Wiretap Act, and the Stored Communications Act restrict the interception and access of electronic communications, with certain exceptions for business use and employee consent.

Many states, such as California, Florida, Maryland, and Massachusetts, for example, have passed laws imposing even stricter standards—such as requiring consent from all parties to a communication—which can create additional compliance challenges.

Despite these laws, the legal framework governing access to employee-owned devices often lags behind the pace of technology, leaving room for misinterpretation and missteps. Legal counsel should guide any data collection effort to ensure it’s lawful, proportionate, and consistent with company policies. Additionally, when advising clients operating and employing personnel across multiple states, counsel should check for any state-specific nuances in the law.

Mobile Realities

To mitigate legal risk and maximize employee trust, organizations should develop and routinely update key workplace policies that govern the use of personal devices and the company’s right to access data.

Core policies should include comprehensive BYOD and electronic device policies that define acceptable use, data security requirements, and the conditions under which monitoring or access may occur.

While a BYOD policy can help establish clear expectations and may serve as a contractual basis for lawful access, organizations must proceed with caution to avoid invasion of privacy claims and liability risks.

Just as important are harassment, retaliation, and workplace conduct policies, which should state that communications on personal devices may be subject to review during internal investigations or compliance reviews. Exit procedures should also address data deletion and return protocols to protect company information.

These policies should be transparent, tailored to the organization’s legal obligations and culture, and consistently communicated to employees, with written acknowledgment to ensure informed consent and reduce the risk of future disputes.

These proactive measures strengthen compliance and data governance, while providing critical legal footing if personal device data becomes relevant in litigation or internal investigations.

Collecting Data

Organizations should follow a defensible, well-documented, and privacy-conscious process to ensure the integrity of the data and reduce legal risk.

Develop a clear articulation of the organizational need for the data. From there, the organization is situated to establish a defined scope for the search and collection, and to obtain written employee consent. It may be useful for IT and legal teams to collaborate and conduct data custodian interviews to explain the purpose of the collection and set expectations with the employee.

Organizations should also consider how to leverage forensic tools to identify, collect, and preserve mobile data. The e-discovery industry has grown substantially in recent years, and with it, the development of sophisticated technologies capable of preserving data integrity across diverse platforms.

These tools are often essential for capturing metadata, maintaining a verifiable chain of custody, and avoiding inadvertent spoliation through alteration or deletion. By incorporating forensic tools early and thoughtfully, legal teams can ensure a collection process that is both technically sound and legally defensible.

App-Specific Nuances

Understanding the technical nuances of specific apps is critical when collecting data. Popular messaging platforms—such as Signal, WhatsApp, iMessage, Telegram, and Facebook Messenger—use varying levels of encryption, data storage, and metadata retention, which significantly impact what can be accessed and how.

Signal, for instance, offers end-to-end encryption, doesn’t store messages or metadata on external servers, and messages typically aren’t backed up to the cloud. On-device access is typically the only viable option for collecting Signal data. However, the application has recently introduced a secure backup feature that may offer new possibilities for data access and collection.

WhatsApp, while also encrypted, allows for cloud backups that can be accessed with the proper credentials and authority. Apple’s iMessage system presents unique challenges, as messages may be stored in iCloud if backups are enabled. Still, access typically requires the user’s Apple ID credentials and may be limited to Apple devices. Each app also has its own retention settings, including disappearing messages, which can erase content before collection efforts begin.

The differences across applications underscore the need for forensic teams and legal counsel to understand architecture, user settings, and privacy features before attempting to collect data. Crucial information may be overlooked, improperly collected, or rendered inadmissible. Innovative collection strategies must be tailored to each app’s capabilities and limitations to ensure both legal compliance and evidentiary integrity.

A Strategic Asset

Data from employee personal devices can be a game-changer in litigation, internal investigations, intellectual property disputes, and workplace misconduct inquiries. For in-house counsel and legal teams, understanding how to access device data lawfully and effectively is no longer optional—it’s a strategic necessity.

Navigating these situations requires a careful balance of legal compliance, privacy considerations, and technical know-how. With the right policies, forensic tools, and legal guidance in place, organizations can responsibly harness the power of mobile data while minimizing risk and employee distrust in today’s increasingly connected workplace.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Allegra Lawrence-Hardy is co-managing partner at Krevolin & Horst and advises management on labor and employment and crisis management issues.

Michelle L. McClafferty is senior counsel at Krevolin & Horst, counsels corporations, nonprofits, and political actors on litigation, risk management, and high-stakes crisis response.

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