March 20, 2018 Articles

Challenges in Preserving and Using IoT Data

The traditional approach of retaining a single expert to opine on the failure of a "dumb" product is going the way of "dumb" products.

By H. Michael O’Brien and Daniel M. Braude

The concept of the Internet of Things (IoT) has existed for nearly 20 years. Technology pioneer Kevin Ashton is widely credited with coining the term in 1999 to describe the connection of objects to the internet. Since that time the IoT, and the ability to control products, machines and systems over the internet, has become a reality. Last year, Gartner, Inc. estimated that there were more than 8 billion connected devices, a number that will exceed 20 billion by 2020. There is little doubt that the IoT is having a profound impact on how we live our lives − an impact that, for better or for worse, will seep into how attorneys conduct litigation.

Two primary new obligations for counsel arise out of the IoT. First, IoT devices create electronically stored information (ESI) that may require preservation. Merely determining what IoT data is available, where it is located and whether it even can be preserved creates challenges not encountered by past generations of litigators. See Model Rules of Prof’l Conduct 1.1, cmt. 1, 8. (Am. Bar Ass'n 1980). Second, litigation involving IoT devices requires retention of testifying experts capable of analyzing IoT data and, in some instances, opining on potential root cause failures.

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