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.
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