Just when eDiscovery specialists have gotten a handle on the more common forms of Electronically Stored Information (ESI), and have begun adapting to the newer data types such as cloud and app based messaging platforms, along comes the Internet-of-Things.
One might ask, “What things?” Hasn’t the internet always been about things? Well in this case, ESI isn’t created by traditional (or more recent for that matter) devices such as a desktop or laptop computer, smartphone or tablet, but instead is created by a “thing” – refrigerators, cars, Fitbits, home management devices, doorbells, you name it. All of these can now create data which can be used as evidence during litigation.
Tom O’Connor, Director, Gulf Coast Legal Tech Center, recently wrote an article for Advanced Discovery about how the IoT is affecting the eDiscovery landscape. In it, he gives a brief history of the Internet of Things as related to the legal world, and through that we see that it’s actually been lurking around for almost a decade, but not until more recently are eDiscovery teams getting on board with the need to preserve, collect, and review this type of data. For example, Tom mentions how the data from an airbag was used during a trial regarding a car accident in the British courts back in 2008. And in 2011 in Massachusetts, another car’s “black box” data was used in court.
More recently, when writing for our affiliate, Exterro, I’ve addressed different murder cases – one where the data from a victim’s FitBit was used; in the other case, data was requested from the home’s Amazon Echo to see if it had recording anything during the time of the murder (ACEDS addressed the Alexa case in Canada and Craig Ball exposed the data collected by this talkative IOT device). And on the civil side of litigation, there was the case where the Boston Red Sox were caught using Apple watches to steal signs from the Yankees.
So how can legal teams prepare for this? Tom O’Connor suggests five steps:
- Know the Facts
- Know the People
- Make Early Case Analysis Part of Every Case
- Validate Current Data from Past Results
As Tom states, “Engaging in these five steps will enable litigators to collect all the necessary information to evaluate exposure, assess risk, make recommendations to clients, and set case strategies, including a budget and possible settlement options.”
New data types are always changing, but the processes remain the same. This is where continued legal technology training becomes useful. Someone who knows the law and the steps that need to be taken during Someone who knows the law and the steps that need to be taken during discovery -- the most expensive and time-consuming part of litigation -- as well as understands the different types of ESI and how they can be collected, is going to be successful in eDiscovery.