How is the Internet of Things (IoT) is affecting the eDiscovery landscape in 2016Ref Wayne
Internet of Things (IoT) refers to the ever increasing network of physical objects that feature an IP Address for internet connectivity and the resulting internet communication network that occurs. Actual ‘Things’ in the IoT include built-in sensors in an automobile to alert a driver when tire pressure is low, a heart monitor implant, biochip transponder in an animal, or any other natural or man-made object with the ability to transfer data over any network.
IoT evolved from the convergence various technologies and systems that connect operational technology (OT) and information technology (IT) allowing unstructured machine-generated data to be analyzed for insights. It is estimated that IoT will encompass up to fifty billion ‘Things’ by 2020.
Electronic Discovery (e-discovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. These legal proceedings include such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format(ESI). E-discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.
Because of the sheer volume of electronic data produced and stored, processes and technologies around e-discovery are often complex. Additionally electronic documents are more dynamic than hardcopy evidence, and often contain changing metadata such as time-date stamps, author and recipient information, and file properties.
There is concern that leads many to consider that Big Data infrastructures such as the IoT and Data Mining may be incompatible with privacy. Digital data is extremely well-suited to investigation as it can easily be searched electronically, whereas paper documents must be scrutinized manually. Furthermore, digital data is difficult to destroy, particularly if it enters a network as it appears on multiple hard drives and digital files, and even if deleted, can be resurrected. The only reliable way to destroy a computer file is to physically destroy every hard drive that has been utilized.
IoT is the ecosystem of interconnected sensory devices that perform coordinated, pre-programmed tasks without requiring continuous human input. This single automated ecosystem can create a very accurate data map about a person’s activity, past and present, and even anticipate a person’s needs.
This largely automated data storage process presents numerous preservation conundrums for litigators. It may be difficult to preserve only the relevant IoT data and litigants may not have the requisite control over the required IoT data. Technology companies have invested billions to maintain access to the data created from IoT devices causing discussion as to who controls data created. Questionably, is it the company who created the device or the person who’s data the device has collected?
Preservation of IoT may be limited by the proposed revisions to the Federal Rules of Civil Procedure. Mindful of litigants’ inclination to over-preserve evidence, the Rules Committee seeks to clarify and limit litigants’ discovery obligations.
IoT will generate positive benefits for businesses and individuals however further work is required concerning the vast store of data created in the context of e-discovery in an increasingly litigious society. Courts need to develop ways to deal with disputes that involve such IoT technology.