The Internet of Things and Its Impact on eDiscovery

Bill Tolson

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Four years ago, the internet of things (IoT) was a new concept for many — especially those in the legal industry.

If you still aren’t sure what IoT technology really does, according to Webopedia, it “extends internet connectivity beyond traditional devices like desktop and laptop computers, smartphones and tablets to a diverse range of devices and everyday things that utilize embedded technology to communicate and interact with the external environment, all via the internet.”

The internet of things enables common objects with built-in network connectivity — such as household appliances, light bulbs, automobiles, security systems, smartwatches, wearable activity trackers and health devices — to send, store and receive data without the need for human interaction.

According to Gartner, there were 6.4 billion connected “things” in use worldwide during 2016 (a 30% increase from 2015). The organization estimated this number will reach 20.8 billion by 2020. This huge anticipated rise in IoT devices suggests that we are in the midst of a technological inflection point — almost everyone and everything will be connected to the internet, all of the time.

IoT devices will likely be generating a great deal of data constantly. Due to the designs of many of these devices, they will have a limited ability to save the data they generate. Thus, data could be deleted or written over quickly. Some technologies, such as smartwatches and Fitbit-like activity devices, regularly send data to a common storage system. Depending on the storage company’s retention policies, the data could be a target of eDiscovery.

But what if a Fitbit owner changes their system settings so that data is not retained after they become aware of a pending litigation? Is that considered spoliation? Much like social media activity, attorneys are already targeting these devices for eDiscovery. Soon, attorneys will be asking for data from your break room coffee maker, refrigerator or microwave oven.

Several issues will arise with this interconnected universe, including the need to place a litigation hold on an individual’s microwave oven’s data before it’s automatically written over. Another issue is the question of chain of custody. Will chain of custody be an issue due to the fact that many of these devices will not have sophisticated security or the ability to protect data if needed on a litigation hold? This question may drive the need for federal oversight in the future.

The universe of possible data locations that might hold relevant data is dramatically expanding. As attorneys become more educated on the possibilities, the potential for eDiscovery costs to keep rising is a given — not to mention the possibility of eDiscovery abuse. Because of this, the Federal Rules of Civil Procedure will have to change in order to account for these new data sources and their limitations as they relate to eDiscovery.

Learn more about this topic by attending the associated session “IoT & E-Discovery – You Be the Judge” at ARMA LIVE! starting Oct. 15 in Orlando.

 

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    Amy Van Artsdalen October 15, 2017

    ProofPoint discovered that refrigerators were being hacked. Some people were concerned about Roomba vacuums were mapping their homes. This is something that we need to be mindful of.

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