March 14, 2018 Articles

Electronic Discovery and the Internet of Things

By Angela Emmerling Shapiro

Technology has become fully integrated with every aspect of our lives. Wearable activity trackers and smart watches are capable of counting your footsteps, recording your location from moment to moment, registering what music you listen to, logging which episodes of what show you watched last night, monitoring how fast your heart is beating at any given minute, and analyzing when and how deeply you slept.

Newer automobiles are outfitted with sensors and monitors that transmit or record real-time information about your speed, location, driving events, and mechanical issues. Vehicle sensors can identify collision risks and automatically engage your car’s brakes when warranted. Your home thermostat, security devices, and even your garage door can be monitored and controlled using an app from thousands of miles away. Every day our world is connected by more objects (things) that are communicating with each other and with the Internet. This is commonly referred to as the Internet of Things (or IoT).

The pervasiveness of objects that transmit, receive, and record electronic information about the world around us presents an ever-evolving challenge for attorneys and clients trying to satisfy electronic discovery obligations. This challenge can be a moving target as the IoT itself develops, with connected objects becoming ever more sophisticated and ubiquitous.

Rule 34 of the Federal Rules of Civil Procedure defines electronically stored information (ESI) broadly in an effort to capture evolving technology and easily encompasses the IoT. Accordingly, if your client has IoT data that is likely relevant to anticipated litigation, you will need to consider the data along with more traditional ESI (emails, word-processing documents, electronic spreadsheets, etc.) when developing a plan for data preservation, collection, review, and production. As with any preservation plan, it is critical to make this assessment early to avoid spoliation concerns.

Working with IoT data can present a practical challenge that distinguishes the data from “traditional” ESI because device manufacturers each use their own method of collecting and storing information. Raw data sitting on an IoT device may be useless without a significant expenditure of resources, triggering a proportionality analysis that could require an early motion and judicial guidance.

E-discovery vendors are available to assist with complicated preservation tasks, but with the pace of IoT advances, even those professionals don’t always have tools available to make preservation, collection, or review of some IoT data practicable (or practical). Absent a court order to the manufacturer requiring the production of aggregate data stored on its servers or elsewhere on the cloud, a substantial portion of IoT data may remains out of reach in standard litigation matters for the time being.

Discovery of IoT data also presents unique legal challenges. Even determining the core issue of whether the data is in the possession, custody, or control of your client is complicated when dealing with connected devices. Privacy concerns must also be considered, particularly for health data or data that originate from (or are stored on) foreign soil, subject to foreign privacy laws.

The potential value of IoT data, once the above challenges (as well as standard evidentiary challenges) have been satisfied, is vast. This type of data could become standard fare in every type of litigation matter, even those where electronic discovery has not typically been a consideration.

Personal injury plaintiffs have already started using activity tracker data to demonstrate a decrease in post-injury activity. Insurers might use the same type of data to show the reverse. An employer could use location or speed data to substantiate cause for a delivery driver’s termination. Divorce cases could center on information gathered from various IoT sources. Defense of a product liability case could rely on temperature data collected from a connected thermostat. We are already seeing some of this today, and it will become more and more commonplace as attorneys and courts become better acquainted with the IoT and the treasure trove of data stored there.

As technology continues to become interwoven with our daily lives, it is important that all attorneys understand the duty to preserve and its application to ESI. Even attorneys who have not routinely encountered electronic discovery issues in the past need to acquaint themselves with the basics of handling ESI. If necessary, engage co-counsel or a consultant so that you do not unwittingly put your client (and yourself) at risk of a spoliation claim. The IoT is here to stay and you want to be in a position to leverage it for the benefit of your clients.

 

Angela Emmerling Shapiro is a litigation shareholder with Butzel Long in Detroit, and serves as the chair of Butzel Long’s Women’s Leadership Committee.


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