Martucci and Bechtel: How Courts Have Analyzed Employer Control Over Employees’ Personal Devices
The increasing use of personal devices in the workplace—and the growing popularity of bring-your-own-device policies—is bringing significant legal complexity to employment disputes. In an article in the Fall 2026 issue of the New York State Bar Association Journal, Shook National Employment Litigation and Policy Chair William C. Martucci and Senior Law Clerk Maddie Bechtel note that while employees’ personal devices may contain a wealth of potentially relevant information, courts are being asked to assess employers’ control over their employees’ personal devices to determine whether such data must be preserved and produced.
In “Testing the Bounds of E-Discovery: How Courts Have Analyzed Employer Control Over Personal Devices,” Martucci and Bechtel say that as case law develops, courts have taken varying approaches to the discoverability of personal devices. Martucci and Bechtel note that while the Federal Rules of Civil Procedure impose an affirmative obligation on parties to provide any electronically stored information in their possession, custody or control that may support their claims or defenses, the phrase “possession, custody or control” is not explicitly defined, leading to a patchwork of standards across and within jurisdictions.
“While some cases involving electronically stored information on employees’ personal devices present clear outcomes—either plainly discoverable or clearly outside the scope of discovery—many fall into a legal gray area,” they say. “In these middle-ground scenarios, courts have turned to a range of standards to determine whether such data falls within a party’s ‘possession, custody or control’ under the Federal Rules of Civil Procedure.”
Read the article in the New York State Bar Association Journal >>
In “Testing the Bounds of E-Discovery: How Courts Have Analyzed Employer Control Over Personal Devices,” Martucci and Bechtel say that as case law develops, courts have taken varying approaches to the discoverability of personal devices. Martucci and Bechtel note that while the Federal Rules of Civil Procedure impose an affirmative obligation on parties to provide any electronically stored information in their possession, custody or control that may support their claims or defenses, the phrase “possession, custody or control” is not explicitly defined, leading to a patchwork of standards across and within jurisdictions.
“While some cases involving electronically stored information on employees’ personal devices present clear outcomes—either plainly discoverable or clearly outside the scope of discovery—many fall into a legal gray area,” they say. “In these middle-ground scenarios, courts have turned to a range of standards to determine whether such data falls within a party’s ‘possession, custody or control’ under the Federal Rules of Civil Procedure.”
Read the article in the New York State Bar Association Journal >>
