Frank Sommers’ wrote a thought-provoking article for the recent June 2015 issue of Litigation News in which he explored the data that civil litigants might attempt to access to prove their case, including GPS data, Event Data Recorder (“EDR”) data, and cell tower “ping” data. At the end of the article, he identifies now-popular home sensor technology as a possible location of evidentiary data.
While not the primary focus of Mr. Sommers’ article, he makes an excellent recommendation for construction lawyers. With the proliferation of “smart” commercial building design and technology aimed at greener and more convenient construction, maintenance, and use, what useful data do our buildings hold for use in construction disputes? Could a Nest or similar thermostat provide data that consultants can use to identify the cause of moisture intrusion and mold in buildings? Do smartphones or devices that might be installed during construction store data that can be accessed to identify the number of workers present in a project area to track and/or defend delay and productivity claims? By way of example, linked here is Nest’s Privacy Statement for Nest Products and Services, which identifies some of the data that its products collect.
We do not yet know the answers to the questions above, but we should be asking those and similar questions to our clients and witnesses, and perhaps even to opposing parties in formal discovery. In fact, arguments could be made that we are obligated to inquire about, instruct our clients to preserve, and produce such devices and their stored data in litigation. But regardless of whether the inquiries are formal or informal, we will not know what data is available until we know what devices are installed that might hold that data.