Employees and workers frequently ask who owns a smartphone that is used for work purposes. The answer is, it depends.
Many companies provide mobile phones to employees for work-related use or cover the costs of personal phones as part of a benefit policy. Usually, the question of ownership doesn’t arise. However, if you find yourself tied to a company lawsuit, you or your employer may be required to provide data from your phone (such as text messages, emails, or call logs).
In these situations, the question is less about who owns the phone and its data and more about whether the person or organization to which a request for data is directed possesses, has custody of, or controls the device and its data. Fed. Rules Civ. Proc. R. 34(a)(1).
The Federal Rules of Civil Procedure do not define “possession, custody, or control,” and courts across the country have varying interpretations of this phrasing. In Minnesota, courts have held that a person or organization possesses, has custody of, or controls any data it has the practical ability to obtain. The practical ability standard requires that a party preserve, collect, search, and produce data it has the practical ability to obtain regardless of that party’s legal entitlement or physical possession of the device.
Whether the mobile phone in question was employer-issued may impact the question of practical ability. If the phone was employer-issued, the argument could be made that the employer has custody of the device and controls all its data. This argument is strongest when:
- The employer notified the employee upon issuance that the device and its data was and would remain employer property;
- The employer notified the employee that the device usage could be monitored, with no expectation for privacy;
- The employer audited employee use of the device; and
- The employer notified employees following detection of any inappropriate use.
That said, “bring your own device” (BYOD) policies, requiring employees to use their personal devices to conduct business, have become more common. In one specific example, the Sedona Conference has taken the position that employers who have enacted a BYOD policy do not have legal control over personal text messages when the policy does not assert employer ownership over the texts. (The Sedona Conference, Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, 19 Sedona Conf. J. 495, 531 (2018).)
Ultimately, the question of employer ownership and the “practical ability” to obtain personal device data, especially under BYOD policies, is often context specific. Employees should read all device policies carefully. In cases where specific policies don’t exist, employees should understand the risks associated with using personal devices to conduct work-related activities (e.g., being asked to hand over data housed on your personal phone). Given the intricacies tied to this question, you should seek out specific advice about your obligations and rights regarding data stored on both employer-issued and personal mobile phones.