Most of us live two lives, one of them virtual, within our little boxes, and the other physical, where a bevy of vigilant technologies record our comings and goings.
As lawyers and litigants, we've barely begun to tap the rich rivers of probative data that invisibly envelop us. Nearly all automobiles sold today have collision event recorders tracking speed, acceleration, braking and occupant restraint to the point of a crash. Do 1% of disputed collision cases make use of the data? Our cars, phones, tablets, apps, websites, even home thermostats dutifully track and assess our actions and needs. We are so habitually jacked into networks that even interruption of our data streams is probative.
Today's handheld devices track our movement using geolocation technology and log our activity based on our interaction with apps and networks. But soon, more of what we experience will be recorded, both overtly, as when next-generation devices like Google Glass record all we hear and see, and subtly, as when wristbands monitor our pulse and waking and sleeping movement.
We tend to think of handheld devices as data receivers or repositories. Yet, handhelds are prolific data generators, much more so than the desktop and laptop computers they supplant. Your handheld is a dog sniffing everything: pinging for Wi-Fi, initiating Bluetooth connections, hailing cell sites, recording latitude, longitude, altitude and compass points and all while pushing and pulling data in multiple apps.
A 2013 survey by Pew Research Center determined that 63% of adults use cellphones for online access, and a third of those users said their handheld device was their primary means of Web access. One study found 79% of smartphone users reach for their devices within 15 minutes of waking up and 62% grab them immediately. Facebook revealed that 78% of its U.S. connections happened via handhelds. Outside American borders, the use of handhelds as the primary means of Internet and social networking access is higher still.
As usual, the legal profession is late to the show. Ask corporate lawyers how they are addressing data in handheld devices, and responses are strikingly similar: "For the most part, we choose to ignore it." Some conveniently posit that the data's irrelevant or mistakenly assume it's duplicative of sources already collected. Others mount specious privacy objections—"specious" because data isn't private to the owner upon whom the obligation to preserve and produce devolves. Stated differently (and absent malfeasance), opponents may be unable to gain direct access to your clients' devices; but opponents can compel your clients to preserve and disgorge relevant content. It's the message that matters, not the medium. The same rule holds for social networking content. A Facebook page is less "private" than a family photo album, and a litigant is obliged to produce from either source when contents are responsive.
Parties ignore handhelds and tablet devices because, without proper tools and skills, handhelds are not easy to preserve, collect or process, and their content is ill-suited to review platforms designed for documents. With computer- and server-based content, you could collect electronically stored information with minimal cooperation from an employee. When it comes to handhelds, though, you must pry the devices from their angry hands. It's easier to harvest a kidney!
Further difficulty arises from the fact that the principal forms of data on handheld devices are not documents and may not be text. To understand the content, you must understand data. And that's farther than most lawyers are willing to go, despite the crucial difference data can make in their cases.
The responsibility to preserve and produce relevant content from handheld devices is made exponentially harder by the advent of "bring your own device" in the workplace. Encouraging employees to use personal phones and tablets instead of employer-supplied devices lowers hardware acquisition costs and caters to employee preferences. However, BYOD adds cost, complexity and risk when companies must meet electronic data discovery duties.
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