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E-Discovery's New Challenge: Not Ignoring Internet of Things Data

While internet of things (IoT) devices can hold volumes of discoverable data that may make or break a case, many attorneys often ignore such technology because of the difficulty in accessing and understanding the data. But as IoT devices become more popular, experts say it’s not a subject attorneys can bury their heads in the sand over.

Smartphones may be the first item that comes to mind when you hear the term internet of things. However, items such as Fitbits, Amazon's Alexa, self-vacuuming Roombas and internet-connected cars also fall under the IoT umbrella. After all, IoT pertains to any physical item connected to the internet that collects and shares data.

Dana Conneally, managing partner at QDiscovery and Evidox Corp., noted IoT devices may have multiple data repositories, which creates more data for attorneys to review.

“You want to know what’s on the hard drive of the device, but they are typically connected to the internet and cloud. … Now you have three different rabbit holes you are trying to chase down at the same time," Conneally said.

Such devices represent a new source of evidence for a lawyer’s clients, but how to find value in such data can be difficult. 

“Attorneys, a lot of the time, haven’t been trained how to do that,” said Cozen O'Connor e-discovery and practice advisory services group chairman Dave Walton. “What are the types of evidence out there? We need to know to win in this environment.”

Walton said attorneys are “overwhelmed” by IoT devices in e-discovery, and they usually reason that it’s not practical to assess such devices. However, Walton suggested lawyers should always evaluate if their client's legal matter warrants obtaining information from an IoT device and make proportional requests for the data, an approach that also governs other types of discoverable content.

“You have to be proportional about how you go about the evidence. The more you know about the evidence, the better you know about alternatives” and efficient ways to obtain the evidence, Walton said.

From the e-discovery vendor perspective, Conneally said it’s rare for attorneys to consider IoT devices for preservation, but it is occurring more frequently. He said he’s seen hesitancy because it will increase the volume of data to inspect and the data may be complex to decipher.

Regulations also pose a challenge when processing an IoT device data for e-discovery. Walton cited the Electronic Communications Privacy Act and Stored Communications Act as laws that offer specific regulations governing IoT devices.

Still, the U.S.’s lack of a national privacy law creates a “Wild West” out of the type of personal data collected by devices, Walton added.

But even with a fluid regulatory landscape, harnessing such massive data may prove an invaluable skill for any attorney. “Whoever can figure out how to use this evidence and be the best at it will have the biggest advantage in representing their clients,” Walton said.