The Innovation of Litigation.

Is the Fitbit the Next Smoking Gun in Litigation?

What if your diary, checkbook, and GPS were conveniently packaged into an audiobook that would be played to the jury? This could now be possible through the rise in personal devices, such as Fitbits, smartwatches, Google homes and Alexas, which have opened up a potential goldmine of private information for a lawsuit. But what are the problems that any litigator can anticipate in trying to obtain evidence from these devices?

More and more of our personal devices are falling into the category, Internet of Things (IoT). IoT describes physical devices, vehicles, buildings and other items that can connect to the Internet. Many of us immediately think of personal devices such as Alexas, Amazon Echos, Smart Watches, but this list continues to expand and now includes items such as crockpots, baby socks, cups, and toilets. Many of these devices are continuously collecting and storing data, whether it is through a GPS tracker, microphone, or heart rate monitor.

Information collected by IoT devices is being sought and utilized by attorneys in a wide variety of cases. Prosecutors can request information stored on a defendant’s Alexa and digitally-connected water heater during a murder investigation. While plaintiffs can use data from a Fitbit device in a personal injury case to show a decrease in activity since an accident. But information that tells such a compelling story does not come easily and attorneys should be prepared for some of these common pretrial fights regarding the discoverability of IoT data.

Even though IoT devices are interconnected on the network, the number of manufacturers and providers is as large and diverse as the number of IoT devices on the market. The vast variety of suppliers can present two potential problems to litigators seeking discovery of stored information.

The data may not be preserved or collectible.

The first issue that attorneys must address when seeking IoT discovery is who has the data and how is it being preserved. Some IoT devices store the information on the device itself, while other devices transmit the data to a central storage facility, often “the Cloud”. Depending on the level of access the consumer has to the centrally-stored data and whether they can be said to “possess” the evidence, attorneys may need to request the IoT discovery from a third party. This third party may not have the means to produce the evidence in a readable format, have preserved the evidence, or even be inclined to produce the information at all.

The need for suppliers to reassure customers of their commitment to privacy.

Many companies have taken a strong stance against releasing the data to opposing counsel in order to reassure the consumer market that their seemingly innocent toaster is not going to divulge all their personal kitchen conversations. For example, Amazon fought discovery requests by prosecutors and police to turn over information stored on an Amazon Echo during the time of a murder on the basis of the defendant’s First Amendment right to privacy. However, information from other personal devices has been more easily obtained such as GPS information from Fitbit watches and cellphones.

Both consumers and attorney should be aware that many privacy policies have clauses that allow the third-party supplier to turn-over IoT information to law enforcement. Google’s policy allows the sharing of personal information gathered on IoT devices “as reasonably necessary to meet any applicable law, regulation, legal process or enforceable governmental request.” Amazon has a similar policy that permits the release of information “to comply with the law.” These policies have so far been tested in criminal procedures when law enforcement and prosecutors are seeking information. It remains to see how many companies respond to discovery requests in civil suits.

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Trial by Tech is a blog brought to you by Baylor Law’s Executive LL.M. in Litigation Management—the first program in the nation designed exclusively for lawyers who aspire to direct effective litigation strategy, control electronic discovery, leverage technology, manage a team, and lead their company’s or firm’s efforts to manage a high-volume, high-stakes docket.

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