I bang on a fair bit about the potentially discoverable evidence which we all create and carry around with us. It lies in diary entries, in our use of Google Maps, as social media posts, and in a wide range of other things which betray our location, what we are doing, our state of mind, and all sorts of things which may be relevant to proceedings of one kind or another.

Here is a report by a firm of solicitors who successfully defended an action brought against a local authority by someone who claimed to have been injured as a result of tripping up. A photograph of the site of the fall (or “a digital image of the locus” as lawyers apparently say) was produced by the claimant. Expert evidence showed that the photograph had in fact been taken nine days before the accident.

You would not necessarily need “expert evidence” to show this – I have written about examples of data which is readily accessible without any sophisticated tools or equipment in articles such as:

 The importance of geolocation data as evidence

Devices which tell their own eDiscovery story

The cloud for companies and celebs alike

eDiscovery lessons from a Russian soldier’s Ukraine pictures

But, you say, we don’t deal with trip and fall claims. We are heavyweight commercial lawyers dealing with heavyweight commercial matters, and can’t think how a “digital image of the locus” is going to be relevant to the sort of work which we do.

You might be right. You might be right because that is in fact the case; you might be right because no one has ever bothered to consider whether there might be some evidence lurking in a phone or a tablet, or on some apparently superficial medium like Facebook which, if it does not support or damage a claim entirely, might at the least call into question the veracity of a witness.

My thanks to John Bates, senior lecturer at Northumbria Law School, for drawing this case to our attention on Twitter.

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