I have been talking and writing recently about the growing importance of apparently insignificant data which may be both discoverable and important as evidence. My article The importance of geolocation data as evidence, for example, picked on the information which lurks within photographs, showing the time, date and location, as well as other information, at the moment the shutter was clicked. The result is a “document” of evidential weight potentially equal to an email or a Word file.
We have been hearing a lot also about the Internet of things, as personal, domestic, public service and industrial devices are increasingly attached to the Internet, giving and receiving information, often continuously. The Nest thermostat which we had fitted this week is an (everyday) example.
Marc Jenkins of Cicayda has written about a particular aspect of this, namely wearable technology and specifically the increasing number of devices which record health and fitness. His article How is your litigation fitness?, like my geolocation article, points out that the data derived from such devices is both potentially discoverable as a formal matter and potentially useful as evidence.
He makes a wider point than this though. This is “technology that fades into the background” and becomes just part of everyday life. We use its output, either knowingly willing to be recorded in this way or unconscious of the implications. The assumption that this type of data belongs only in the matrimonial and personal injury field is a false one. Will we find when we need it? Will we even remember to look?
You need to sort through an awful lot of noise to extract anything meaningful from these continuous and ubiquitous data flows. As Marc Jenkins says, “there will be winners and losers in the legal field [..and..] the winners will be outside counsel who know where to find this data in individual cases and turn it into knowledge that persuades others”.
In a business context, it pays to be aware of this and to anticipate the need to access meaningful signals from the noise and, as Marc Jenkins puts it, “to analyse any eDiscovery, information governance and legal issues that are created by [any] new application, technology or process”.
He makes the point that lawyers need fast, reliable and efficient eDiscovery tools (and, not unreasonably, points to Cicayda’s own discovery applications), to extract this value in a way which is evidentially sound, and to do so in a cost-effective, speedy and proportionate way.