In recent years, the use of connected devices has become widespread among consumers and businesses. From thermostats to cars, countless objects can now collect, store and transmit data. The vast network of these connected objects is often called the 'Internet of Things' (IoT). While this ability to send and receive data provides powerful tools to improve consumer experience and gather information about consumer behaviour, the IoT presents discovery challenges concerning data preservation and extraction.
Just like traditional forms of electronically stored information (ESI), potentially relevant information from an IoT device will be discoverable in litigation. However, the discovery of ESI on IoT devices pfresents some unique challenges, including:
- establishing the data owner's relationship to the litigation;
- producing the data in a useable format;
- separating relevant information from the vast amounts of data collected by IoT devices; and
- maintaining consumer confidentiality.
Data collected by an IoT device may reside on the device only temporarily, if at all, before being transferred to a remote server. Due to the cost savings of outsourcing data-hosting services, IoT-device data is often stored on third-party servers. While the data may technically be in the possession and custody of the service provider, the device manufacturer often maintains control over the data for purposes of triggering a party's preservation obligations under the Federal Rules of Civil Procedure or state law procedures. As part of a comprehensive information governance programme, companies contemplating the use of a third-party data storage provider should evaluate the service provider's ability to comply with company data retention policies, including the preservation of data, and to retrieve and deliver company data when necessary.
In addition to their benefits, IoT devices present unique and discovery challenges. Should litigation arise, data retention policies that ensure proper preservation of information and allow the sorting and production of data should help to facilitate the discovery process.
For further information on this topic please contact Lilya Mitelman or Michael D Battaglia at Mayer Brown LLP by telephone (+1 650 331 2000) or email ([email protected] or [email protected]). The Mayer Brown LLP website can be accessed at www.mayerbrown.com.
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