A nationally recognized electronic evidence and case management expert with over 20 years of experience in consulting for legal and corporate entities, Dan Regard of iDiscovery Solutions discusses the immediate and long-term impact of the Internet of Things (IoT) on litigation, privacy, government relations and more. His remarks have been edited for length and style.
MCC: Let’s start out by clarifying what the Internet of Things is.
Regard: The IoT is a network of devices, vehicles, buildings and other physical objects that have computers embedded within them. These sometimes very small, almost passive computers generate records that have location, time, date and other sensor information. Some commonly thought of items include fitness trackers, security systems and home thermostats; more unusual ones are light bulbs and teakettles.
MCC: Why should our readers care about the IoT? How does it impact litigation?
Regard: In litigation we’re taught that the classic questions are who, what and when. The Internet of Things gives us a rich tapestry of information on which to answer those questions. As an example of litigation impact, a recent class action we are consulting on has a billion pieces of data, many of them generated from GPS, cell phones, text messaging, and other devices and systems. By analyzing this data, we get dramatic insight into the facts of the case, along with time, date and location information. By connecting the various data dots and analyzing as a whole, our litigators largely know the who – who was in possession of the device – the when, the where and, often, what happened. There was a phone call. There was a purchase. There was a log-in to a remote service. These are provided by IoT connections.
MCC: What can we expect to see with respect to litigation and the IoT?
Regard: The projections about the Internet of Things are so large, they are almost unbelievable: 26 billion actively connected items by 2020, of which 15 billion will be phones, tablets and computers. This does not include passive tags or radio-frequency identification tags. When you have this many devices collecting time, date and location information, you’ll develop a highly detailed picture about where a person is going, who they’re talking to, the direction they’re facing, the temperature, if they’re standing up, if they’re shaking hands. This information can help resolve a lot of the factual questions we see in everyday litigation.
Trial teams need to stay abreast of this technology and how the IoT can affect a given litigation. We’re working on a case now where door swipes and GPS are useful pieces of information. The trial team was astute enough to recognize its importance. It doesn’t mean that you need to collect data from GPS devices, Wi-Fi traces or credit card transactions for every litigation, but being aware of the IoT makes you more adept for cases where that information can help you.
MCC: What privacy issues will we be facing?
Regard: Through the Internet of Things, we can develop an extraordinarily detailed perspective of an employee’s life between their center of privacy, the home, and their professional location, the office. In this in-between zone, we have a huge amount of information that may resolve litigation questions but also gives us unprecedented insight into where people go, the people they talk to, their preferences, their dislikes. That’s the essence of privacy.
It really becomes an issue when we start talking about information that, while not illegal, can be used in a discriminatory context that brings ethics into play. For example, using my cell phone data, you would know where I travel, and that on Sundays I go to my local market and always buy broccoli. If George H.W. Bush was back in office, he doesn’t like broccoli, so suddenly I’m at odds with the President of the United States. In theory, that could result in a situation where I might not be chosen for some opportunity because I like broccoli.
Is that a very extreme example? It is. The point is that there are issues perfectly within legal bounds, but if extreme insight into our personal lives exposed those facets, people could use them for purposes that are not ethical or appropriate.
MCC: What is the government’s role in the use, or misuse, of the IoT?
Regard: The conversation hinges on privacy more than anything else. The government is reliant on the Internet of Things in criminal and civil litigations, but the concern is whether there is probable cause and a valid state interest in data collection or if it is just a blanket program. Is balancing state interests, typically around security, appropriate given the insight it gives into the privacy of the individual citizens? I don’t have an easy answer because it’s often fact- and case-specific. It’s an important dialogue, one that began with the events over the smartphone in San Bernardino and has yet to be addressed.
MCC: Is it more important than ever for legal teams to make sure that they find all of the relevant Internet of Things information before they continue down a path to a case?
Regard: Actually, no. Take a car accident, for example. We have street cams, dash cams, Wi-Fi signals, cell phone or tablet GPS. The issue is which device is the easiest and most helpful to analyze so that we can get an answer quickly, not how do we capture the universe of information related to an event. This is an approach to data collection coined “proportionality” by the Federal Rules of Civil Procedure. It reminds litigants that evidence should be proportionate to the case, not exhaustive.
MCC: What is iDiscovery Solutions doing to help clients grapple with the volume and variety of data points created by the IoT?
Regard: We have a team of data experts who are adept at identifying and collecting this type of real, discoverable information. We’re using existing tools, and also developing a core of proprietary tools, to help aggregate this information from different sources and provide clients with the ability to analyze data, say, when you combine GPS with corporate compensation records, customer invoices, location information, email activity and more.
MCC: How should legal teams be thinking about the IoT? What should they prepare for in-house? When should they look to consultants and discovery experts?
Regard: Every team that we’ve worked with has benefited from something as short as a one- to two-hour brainstorming session to acknowledge what devices emit information related to a sequence of events. That has allowed us to create lists of information in the control of the plaintiffs, in the control of the defendants and in the control of third parties. Then start an assessment of how valuable that information is and how expensive or difficult it is to collect. The exercise of considering it is relatively short – what one does afterward varies from case to case.
We are in the business of providing expertise, so clearly I think that outside expertise is helpful. We’ve seen it have a dramatic effect on the outcome of litigation. Legal teams should apply any expertise they have access to in an effort to ask the right questions and resolve whether or not IoT data is helpful for them.
MCC: Is there an example in which some new and unusual Internet of Things information moved a current case forward for a legal team?
Regard: The interest is currently highest in wage and labor, white collar, and antitrust litigations. For example, in on the clock/off the clock litigation, when employees claim that they are working for the benefit of the employer before they clock in or after they clock out, the Internet of Things can help resolve factual questions. When did they arrive on-site? What were they engaged in? Was that beneficial to the employer?
Another example might be in what markets certain devices were distributed and who distributed them. It may relate to market contracts, gray market distribution and retail of goods. Because the goods themselves are smart, we know where they physically are and when. That can be traced to the batch, the lot and the manufacturer.
MCC: What other impact could the IoT have on businesses?
Regard: Up to this point readers may have taken some of my comments to be forward-looking to a future state that hasn’t arrived, but this has arrived. These devices are in the marketplace now, just not yet in the volumes projected. There is already plenty of litigation that relies heavily on this information to resolve factual issues. Do not think of it as waiting to see what’s going to happen in the future with the Internet of Things but catching up to what’s already going on.
To view a recent webinar on this topic, with Dan Regard and Charlie Platt, please click here.
Daniel L. Regard is the CEO of iDiscovery Solutions. He can be reached at email@example.com.
Published June 21, 2016.