By Helen Geib, QDiscovery
It’s time to think outside the box of familiar sources of electronically stored information (ESI). Our devices are tracking us, and the data they collect is making its way into the courtroom. Discovery and smart technology was the topic of “The Connected World: A Lawyer’s Guide to the Internet of Things,” the latest CLE from the E-Discovery, Information Governance & Cybersecurity Section of the Indianapolis Bar Association.
The Internet of Things (IoT) is the network of devices that collect, send and receive data using the internet. It includes smart appliances, wearable devices, vehicle electronics, HVAC systems and more. Devices may be connected to each other or to a phone or computer that monitors activity, stores data and controls settings.
In the legal arena, the IoT data pioneer is law enforcement. There are already a number of criminal cases that turned on data from connected devices.
The presenters gave several examples, including an arson case where the evidence included data collected from the defendant’s pacemaker. The defendant told investigators he gathered his belongings in a hurry and broke a window with his cane before throwing the suitcase outside. A cardiologist testified this was “highly improbable” based on the pacemaker data. (It didn’t help the defense that gasoline was found on the defendant’s clothing.)
A smart pacemaker is a prime example of connected devices for health care. There’s a growing number and variety of smart medical devices and wearables. These are increasingly used by health insurers as well as health care providers. In fact, insurance companies are notable as early adopters of IoT data, especially in setting rates and conducting investigations.
The presentation also included an interesting case that unexpectedly combined a murder charge and auto insurance. The defendant was accused of suffocating his infant daughter at 4:45 a.m. after he came home from working the night shift. His car was equipped with a Progressive Insurance telematics device. The defense introduced telematics evidence showing that he had turned the car off in front of the house at 4:44 a.m. and turned it back on three minutes later. In part based on this evidence, the defendant was acquitted in a jury trial.
In another vehicle case, the prosecution used data from an air bag module in the defendant’s car to defeat a motion to dismiss the indictment, which stemmed from a fatal car crash after the defendant hit a line of cars stopped at a red light. The air bag data showed the car was going 106 miles per hour a few seconds before impact in a 30 mile per hour zone.
Most civil cases using IoT data are personal injury or insurance coverage cases — at least so far. As smart devices become more and more common and data rich, discovery is bound to follow.
The CLE presenters were Ray Biederman, Scott Collins and Ryan Rieff from Mattingly Burke Cohen & Biederman LLP. Biederman offered a valuable practice pointer for using connected device data in civil cases. People’s usage of connected devices is often inconsistent over time. For this reason, IoT data is most reliable and useful when the relevant timeframe is narrow; for example, as evidence of a person’s physical condition or activities on a particular day.
The main takeaway from the presentation may be the one that wasn’t exactly on-topic. We all need to be vigilant about our (and our family members’) use of connected devices. And most especially, be sure you check the privacy settings regularly. Your devices probably know a lot more about you than you realize.•
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.