Keeping in Step with eDiscovery

Like many people, I am obsessed with my fitness tracker.

Not only do I participate in weekly challenges with friends and strangers alike to see who takes the most steps per day, but I also rely on the heart rate monitor to initiate breathing exercises in order to alleviate stressful situations (hello airplane turbulence!). And, while my collection of non-smart watches gathers dust in the dresser, I’ve added classier bands to accessorize my tracker. Through a smartphone app I can generate a report on how many miles I’ve walked, stairs I’ve climbed, calories I’ve burned and when I’m active or inactive. And for those who haven’t hopped on the fitness band-wagon, the handy iPhone can often collect all the same data as a wearable.

smart watch

The Gartner research company forecasted earlier this year that “8.4 billion connected things will be in use worldwide in 2017, up 31 percent from 2016, and will reach 20.4 billion by 2020.”  That’s a lot of information!

So what’s the takeaway from this story? Evidence.

Since the advent of email, litigators have been required to think literally out of the box for discoverable evidence. And, as technology advances, attorneys are increasingly expected to be “sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery.” Gone are the days when a simple forensic collection of email and loose files from the company network were sufficient.

In 2014 a Canadian law firm set a legal precedent in a personal injury case by using data from a Fitbit fitness tracker to prove that their client suffered detrimental effects from an accident that resulted in decreased physical activity. In that case, the key data came from a Fitbit, but the same principles can apply to data from apps, social media accounts and more. Already criminal law practitioners are looking to use data from pacemakers, key fobs, interactive smart speakers and electronic personal assistants such as Amazon’s Alexa or Apple’s Siri. Connectivity is the new norm, and as a result lawyers have an ever-expanding pool of potentially relevant information to sift through.

Having an acute awareness of these new potential sources of electronically stored information (ESI) is only the first step in staying on top of your eDiscovery game. Amendments to Rule 902 of the Federal Rules of Evidence, set to take effect December 1, 2017, give preferential treatment to ESI “collected in a forensically sound manner,” which preserves the audit history and maintains a strict chain of custody. So resist the urge to have your client self-collect.

Going into the holiday season, amid the flood of advertisements for the latest gadgets and gizmos, keep in mind those very same devices could hold critical evidence for a future case!

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