The discovery of ‘smart’ data – what the Internet of Things can give away in court

The Internet of Things (IoT) promises many things to many different people. While for some it offers unlimited potential for convenience and increased customer satisfaction, for others it holds almost unlimited potential for unfair datamining, security breaches, and privacy invasions. The interaction of the positives and negatives, makes IoT a fascinating intersection between law, policy and technology.

So, how could the IoT data be potentially used as a source of evidence? One of the frontiers for IoT and the law is in criminal justice, where the increasing prevalence of smart devices makes it ever harder for suspects to avoid leaving tell-tale records of their activities. This provides a rich source of evidence for law enforcement agencies, who increasingly turn to smart devices in order to test alibis, verify testimony, and reconstruct crime scenes (Check out this recent article).

Smart data is likely to become increasingly important in regulatory prosecutions as the data on vehicles and machinery becomes increasingly detailed and workers carry devices such as phones, smart watches and Fitbits that reveal what they were doing and precisely where they were. Combining data from multiple sensors could provide detailed information about workplace accidents, for example.

Data from smart devices will be important in civil litigation as well, for instance:

• Electronic information, including the kind of data created by smart devices, is admissible in New Zealand courts;

• IoT data is a "document" that will be discoverable in cases where it is relevant; and

• Parties to disputes will have an obligation to preserve relevant data over which they have control created by smart device.

The relevance of IoT data is not limited to obvious situations such as insurance cases (where the insured was when the building caught fire, the speed of a vehicle entering a corner, and so on). To take just one example, the location history commonly stored on smart phones could establish whether a witness was present at a crucial meeting or, in an employment dispute or negligence case, whether staff were at their stations when an incident occurred.

Senior management and lawyers alike will need to understand what kind of data might exist which could be relevant and to consider at an early stage whether discovery of such information will be required, including from non-parties, and make sure steps are taken to preserve and/or request it, in cases where it might be relevant.

The data routinely collected and stored by smart devices has the capacity to greatly improve the quality of information available to courts. It is up to lawyers to make sure that such information is used sensibly, and without unduly intruding into private and irrelevant circumstances.

Chris Curran is a partner and Mark Campbell is a special counsel at Russell McVeagh.

Send news tips and comments to divina_paredes@idg.co.nz

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