I have published articles recently on the prevalence of data in the increasingly wide range of devices which people use every day, perhaps without much thought. That lack of thought becomes significant when the data may be relevant for discovery purposes.
It is not just potential discovery data which may be captured by these devices. A marathon runner was apparently caught out by a mixture of photographic and performance data, and the difference between a marathon and a sprint can now, it seems, be captured by a wi-fi enabled condom. More on these diverse subjects below.
By “discovery” I do not simply mean because it is required for civil litigation or in the course of an internal regulatory investigation. It is relevant also to criminal investigations where data may help the authorities to obtain a conviction or, just as importantly, to help a suspect achieve acquittal.
My constant repetition on this subject has, I now see, omitted some unlikely-sounding sources. I am obliged to Andrew Haslam of Squires Patton Boggs for drawing to my attention my first example, a heart pacemaker, which he found in an article headed Data on man’s pacemaker led to his arrest on arson charges.
The point at issue was whether a man’s activity immediately prior to a house fire was consistent with his oral evidence. As you can see from the article, a cardiologist looked at the data and said that the story was “highly improbable”. Other information, such as gasoline on the suspect’s shoes and clothing, was also relevant.
Arson is one thing. What about cheating in a marathon? That is the suggestion (unproven I should add) against a competitor in a race in Fort Lauderdale. An investigator was put on alert by some oddity in the runner’s data. A high-resolution picture of her Garmin fitness tracker was inconsistent with her posted times, and further analysis of past records ensued.
As with the alleged arsonist, the self-created data was not the whole case against the person, but provided incentive for investigators to look further. Off your practice area? Not likely to be relevant to the very important commercial cases which you deal with? Perhaps not, but if you don’t even think about it as you plough through Terabytes of email data doing “proper” discovery, you may miss a trick. The key meeting which took place, or maybe not? The “I never met the defendant until 30 January 2016” story? The “I was ill / away / busy” excuse? Any of these may be the chink which opens up a serious weakness in key evidence.
In these days of fake news, one is always alert to the possibility of divergence between boast and reality. This article about a wi-fi enabled condom suggests that data such as “velocity and thrust” can be measured by a new kind of wearable, one which is about as personal as it gets. Dating apps may be about to get a new heading. The word “fake” has other connotations in this context, of course, and one can envisage a yet more intimate measuring device coming (as it were). No more need to ask “How was it for you?”, just check your iPhone.
I await with interest the first story about a man who claims he could not have burnt down the house at No 37 because he was, um, otherwise engaged at No 42 and has the data to prove it. Or perhaps either (or both) of the parties to that event at No 42 will want to show that they could not have been at the suspicious meeting at Head Office.
Our attitude to all this may range from paranoia at one extreme to casual indifference at the other. The important thing, whether the context is legal or personal, is to know that an ever wider range of data is being captured and (which is just as important) that the tools for analysing it and drawing conclusions from it are improving all the time.