Contact Tracing Technology May Lead to Litigation

The COVID-19 pandemic is forcing construction attorneys to consider unprecedented legal issues ranging from government restrictions on work and travel, to monitoring the latest epidemiological research. Clients across the construction industry have turned to their legal counsel for advice on issues such as reopening plans, compliance with government regulations, and employee safety.

One concern clients express is the difficulty monitoring which employees have been exposed to COVID-19. Technology assisted contact tracing may seem like a silver bullet solution to this problem, but some experts worry it could lead to litigation.

This article will give a brief background of contact tracing technology and discuss some of the potential pitfalls attorneys should be aware of when advising clients.

Balancing Safety and Privacy

Employers have a duty to ensure a safe workplace. This responsibility has become particularly sensitive during the COVID-19 pandemic. As more construction sites resumed in-person operations this summer, employers we forced to carefully consider the details of their reopening plans.

The focus of reopening plans has, quite understandably, centered around employee and customer safety. However, employee privacy is quickly emerging as another possible cause for concern. Some employers have announced reopening plans involving contact tracing technology to help maintain workplace safety. While this new technology may be valuable, contact tracing technology also presents several potential legal issues.

What is Contact Tracing?

Contact tracing has been used by health officials for at least 100 years to help understand and limit the transmission of infectious diseases. Historically this process has involved a time-consuming process of in-person interviews.

Today, Technology Assisted Contact Tracing (TACT) is being used by some businesses and governments to automate this process. Although TACT is a broad term, much of the attention has focused on the use of mobile phone location data to track the movements of individuals and determine if they have been exposed to the virus. Privacy advocates have raised concerns over the use of TACT by governments. However, for reasons discussed below, employers should also be aware of the risks.

TACT covers a broad range of practices, but the most controversial involves downloading an application to the user’s smartphone. The application uses a combination of health and location data to determine whether the user has encountered a person who has tested positive.

Several important technical distinctions in TACT technology have arisen from the initial experience of governments and employers. The most significant distinction is how the technology tracks a user’s location data. The use of GPS data can lead to a centralized repository of information more likely to give rise to privacy concerns. Alternatively, the use of Bluetooth technology appears to avoid many of these potential problems.

TACT in the Workplace

Employers face the difficult task of balancing employee safety and employee privacy. Employers have a duty to ensure their workplace is safe for employees and customers. As a result, many employers are considering implementing some form of TACT. As employees gradually return to work and stay-at-home orders are lifted, it is difficult to know which employees have been exposed. TACT offers the attractive prospect of assisting employers maintain a safe workplace during the reopening process.

Employers should be mindful of the potential risks arising from utilizing this technology. Under OSHA, employers have a general duty to provide workers with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA and the CDC do not appear to have provided specific guidance on contact tracing technology. Although the EEOC released updated return-to-work guidance regarding workplace discrimination, it does not address contact tracing technology specifically.

Potential Sources of Litigation

Notwithstanding general OSHA and CDC requirements, employers should be aware of the following risks before including TACT in their return to work plan:

    1. Employee Privacy Rights

Many states, most notably California, have some form of data privacy laws which may be implicated. The California Consumer Privacy Act (CCPA) contains several exceptions for employee data, but these exceptions are not unlimited. For example, employers with California employees may be required to provide disclosures before implementing TACT. Employers should be aware the CCPA contains a private right of action for violations.

    2. Federal Employment Laws

Like temperature screenings and other COVID-related safety procedures, application of TACT in an uneven manner could give rise to discrimination claims. Employers should make sure to avoid targeting policies towards specific groups, even if these groups have been identified by health experts as being at an elevated risk (older workers, etc.). Any reopening plan should ensure compliance with Title VII, the ADEA, the ADA, and other federal laws. Employers considered covered entities under HIPAA will likely face additional restrictions while using contact tracing technology.

    3. State and Local Government Requirements

Many state and local governments have Orders specific to businesses operating during the reopening process. Most states also have their own data breach notification laws. These local requirements vary by jurisdiction and often carry significant penalties.

    4. Malware and Cybersecurity

Recently, twelve contact tracing apps were reported to contain malware. Hackers used these apps to infect devices with viruses and steal user’s data. Although it remains unclear how many users fell victim to the breach, the event underscores the importance of conducting appropriate due diligence on any product before implementation.

    5. Practical Problems

Other practical problems can arise, particularly if employers make the use of TACT mandatory for employees. For example, if downloading a contract tracing app is a mandatory component of an employer’s reopening plan, employees without smartphones may be unable to resume normal operations. Furthermore, the actual effectiveness of TACT remains unresolved. To be effective, both employees and a large majority of other individuals in the community must carry a smartphone with them at all times. Also, the potential for false positives and other technology malfunctions will need to be addressed.

Conclusion

The level of risk created by including TACT in a workplace reopening plan depends on the details of the program and the technology. Important variables include, but are not limited to; the extent to which the program is mandatory, whether the program allows employers access to employee data, the type of geolocation technology involved, and whether apps are installed to an employer-issued versus an employee’s personal device.

It should be noted that competing COVID-19-related data privacy proposals have been introduced in Congress. While the future of these proposals is not clear, their enactment would likely have a direct impact on employers using TACT to maintain a healthy workplace environment.

Employers should ensure the personal health information of employees is kept private and secure. This requires a thorough understanding of any technology prior to implementation in the workplace. Maintaining a balance between employee safety and employee privacy has never been more difficult. Unfortunately, this may be another aspect of the “new normal” for employers to live with for the foreseeable future.

Author Patrick McKnight is an associate in the Litigation Department at Klehr Harrison. He focuses his practice on corporate and complex commercial litigation, employment law, and cybersecurity.

A previous version of this article was published on the Klehr Harrison website.

New Feature: The Litigation Tech Tip

At the Fall Meeting Division 1 lunch in Austin, local Texas attorney Karl Seelbach of Doyle & Seelbach provided a great demonstration regarding what technology he uses to reducing the amount of paper that he drags with him when going to depositions or to trial. Our own Tom Dunn spoke as well and provided a written summary of the presentation here on the blog about a month ago.

Karl Seelbach, Doyle & Seelbach, Austin, TX

Karl also provides a monthly technology tip to his contacts, and he has agreed to allow us to republish his technology tips here on The Dispute Resolver. 

Before we get into the tip, here is a little background on Karl:  his firm handles commercial and personal injury litigation. Before starting his own firm with Trek Doyle, Karl was an associate and then a shareholder with Winstead PC, one of Texas's largest law firms. In each of the past three years, Karl was named a Texas Rising Star by Thomson Reuters, Texas Monthly, and the Texas Super Lawyers Magazine.

Karl is well known in the Texas legal community as being on the cutting edge of legal apps for use on tablets, smart phones, and computers to reduce paper in the office and to increase persuasiveness through the use of technology.

This month's tip is a brief list of a few applications that can help organize your practice and your depositions.

• Consider using a task management app (e.g., Todoist) to organize your projects, assign tasks to your entire team and monitor their progress.

• Stop printing reams of paper and carrying heavy boxes to depositions. Instead, use electronic exhibits (e.g.,AgileLaw) to go paperless. 

• Stop writing your notes on paper. Instead, use a note taking app (e.g., Evernote) to make your notes searchable and shareable with team members. At the very least, scan your handwritten notes for safekeeping (bonus: some apps like Evernote convert your handwritten notes to searchable text).

As an aside, there are other options available if Todoist is not the platform for you. This website mentions a few. My firm uses a platform that we have customized for our own purposes. If you are willing to spend more money on a task management software, consider contacting one of these companies to determine whether they can customize a solution for you.  

I have not tried AgileLaw. As construction lawyers, I think many of us are hesitant to go away from paper simply because of how document-intensive our cases are, so I would be interested to hear from anyone here who has tried it or any other similar app.

As for Evernote, there are other options available here as well. This website has a list of ten. I have tried other available software -- Microsoft's OneNote in particular -- and I have found that Evernote is more intuitive to use. An option that attorneys may consider is using Evernote or OneNote as a way to organize electronic legal research obtained from Google searches, blogs, or other online resources. I have done this in the past and have found it to be a major time saver.

Please let us know if you have any thoughts on Karl's tips or my comments.

A Litigator's Guide to Thriving in the Digital Age -- Recap of Division 1's Lunch Program in Austin

What applications should I buy?

How do I try a case without carrying 4 boxes everyday? 

Email - love it and hate it, how do I find a balance?

Karl, Rob, Drew, and Tom gave answers to D1 members in Austin.

Karl Seelbach, Rob Ruesch, Drew Harris, and Tom Dunn

* * *

Rob Ruesch, Division 1 Steering Committee Member, the lunch program for Divisions 1 and 2 at the Fall Meeting in Austin, Texas.  The topic maxed out the occupancy of the room given to us and there was active participation by the attendees during the program.  

During the presentation, Karl Seelbach talked about technology and the mobile litigator.  He highlighted the "go to" applications. I asked Karl to recap his presentation for Division 1 members who could not join:

Attorneys who want to stay organized and get a leg up on the competition should use technology to their advantage. Consider using a task management app (e.g., Todoist) to organize your projects, assign tasks to your entire team and monitor their progress. Stop printing reams of paper and carrying heavy boxes to depositions. Instead, use electronic exhibits (e.g., AgileLaw) to go paperless. Stop writing your notes on paper. Instead, use a note taking app (e.g., Evernote) to make your notes searchable and shareable with team members. Or at the very least, scan your handwritten notes for safekeeping (bonus:  some apps convert your handwritten notes to searchable text). If you’d like more free tech tips or a list of recommended apps for attorneys, contact me at karl@doyleseelbach.com or sign up for my monthly newsletter at http://www.doyleseelbach.com/. 

Drew Harris walked us through Trial Director for ipads.  He demonstrated the "must have" tools for a trial attorney's toolbox and conducted a live demonstration of trial he recently conducted.  By the end of the presentation, the vast majority of the attendees raised their hand that they will consider using an ipad for their next trial.

I (Tom Dunn) spoke about email practice management.  I went through the answers to the 10-Question survey of Division 1 members and shared my own experience / strategies to manage and control email and not let it control me.  Click HERE to view my presentation.  

Thank you to all of the Division 1/2 members who attended the meeting.  If you want access to some of the written materials provided at this program (or past programs), please contact Nick Holmes (nholmes@devinemillimet.com), Division 1 Chair, for access to the Division 1 dropbox account.  

If you come across new applications or strategies to deal with the "digital age" as a litigator or trial attorney, please contact one of the editors of The Dispute Resolver and we may be able to share it with Division 1 members.

#ABAConstruct #FCLAustin #TheDisputeResolver

Attend D1's Lunch Program at the Fall Meeting: Technology Is Making Things Better, Right? A Litigator's Guide to Thriving in the Digital Age

To submit questions/topics in advance of the lunch presentation, please contact the Moderator or Panelists at the email addresses listed above.  See you on October 8 at the #ADRSummit.  #ABAConstruct #FCLAustin

Latest Wave Of The Litigation World -- Technology Assisted Review (TAR), by Jared R. Lake, RCSP, BDO Consulting

Year over year, the main line of legal press generates a fair amount of "noise" with articles in their periodicals, publications, journals, and blogs about the rising expense and burden surrounding the litigation world- as it does with the rapidly changing world of litigation technology. The use of technology has become common place in litigation.  Yet, even as technology related law experiences gains in both admissibility, as well as understanding, parties are under more scrutiny with respect to tolls they have utilized to identify, preserve, and collect electronically store information (ESI).

Enter the latest technology wave to crash into the litigation world- Technology Assisted Review (TAR).  The Blair Maron study empirically established beyond a statistical doubt that humans are not nearly as accurate than they self-reported being when working amidst a heterogeneous data set of documents that have a variety of different data types and formats...or using ad hoc, keyword as the lone approach to identifying relevant ESI, for that matter. This, then, is a very important factor that should be at the root of and interwoven into the foundation of evaluating the effectiveness of automated search technology and accompanying tools with respect to their positive impact on litigation practices.

The 2012 judicial opinion approving the use of said TAR will only expedite its acceptance and utilization of this methodology.  At its core, TAR is a process for ranking or coding a collected corpus of ESI by using a computerized system that harnesses a the knowledge base of a multitude of subject matter experts on a smaller set of documents- and then takes license and liberty when applying them to the remaining documents in the corpus of the collection.

How does this happen?  It could be through a few different methods:

1.      algorithms can be to either show how similar- or dissimilar- the remaining documents are to what has already been coded as "relevant"  to a litigation matter by subject matter experts'

2.      Or by implementing methodologies that develop a set of stringent, systematic rules that essentially emulate the patterns of the expert decision makers processes.

3.      Generally, TAR systems incorporate the use of statistical and/or sampling techniques that serve as a road map of sorts to guide and measure the overall process.

There is, importantly, often an accepted trade-off for the practitioner between precision and volume.  The system to “retrieve more documents” comes with an expense- figuratively and literally- of decreasing accuracy/precision, resulting in the presence of more irrelevant documents.  For this reason, logically, practitioners and litigating parties would be best served to evaluate the use of TAR methods and techniques in a wide range of cases- but particularly in large and complex litigation matters.  For additional background and a glossary of terms, see Maura R. Grossman and Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, with Foreword by John M. Facciola, U.S. Magistrate Judge, 2013 Fed. Cts. L. Rev. 7 (January 2013).

A publication from The Sedona Conference, The Sedona Conference, Navigating The Vendor Proposal Process (2007 ed.), p. 29, summarizes this best:

Technology is developing that will allow for electronic relevancy assessments and subject matter, or issue coding. These technologies have the potential to dramatically change the way electronic discovery is handled in litigation, and could save litigants millions of dollars in document review costs. Hand-in-hand with electronic relevancy assessment and issue coding, it is anticipated that advanced searching and retrieval technologies may allow for targeted collections and productions, thus reducing the volume of information involved in the discovery process.

The trajectory and enormity of growing data warehouses- in concert with human language fluidity/interchangeability, and individual differences- in concert with cost factors- should make this a required approach to litigation going forward.

 

Texas Court Clarifies What Is Required to Order a Party to Turn Over Hard Drives During Discovery

As with most complex commercial litigation, lawsuits over construction often involve investigations into electronically stored information (“ESI”). In Texas, a recent case has clarified the requirements necessary to order a party to turn over hard drives during disputes over production of ESI.

In 2013, a Texas Court of Appeals in Houston granted a writ of mandamus and vacated an order to compel production of computer and network hard drives.

In the lawsuit, several former co-owners of businesses had a falling out and sued one another alleging various claims. Central to the case was whether one of the parties had misrepresented his educational background to the other.

After several disputes regarding whether responsive ESI had been produced, the trial court issued an order requiring production of forensic images of the defendants’ computer hard drives and the drives of their network servers. Forensic images are digital duplicates of hard drives prepared used to prevent any changes being made to the original source of the ESI.

The defendants sought mandamus relief from the court of appeals, arguing the trial court had abused its discretion. They argued that the order was overly broad, giving the plaintiff “carte blanche to rummage through” their hard drives without any reasonable limits to address privilege, confidentiality, or privacy.

The court of appeals granted the writ of mandamus and vacated the order. It examined the Order in light of the applicable Texas Rules of Civil Procedure, as well as a seminal Texas Supreme Court case on electronic discovery, In re Weekley Homes, 295 S.W. 3d 309 (Tex. 2009). In Texas, courts have held that providing direct access to electronic information systems is particularly intrusive and should be discouraged. An order requiring electronic data storage systems to be turned over is not appropriate unless and until the moving party has shown that existing discovery responses were inadequate and the proposed searches of the storage systems could recover the relevant missing information.

In this case, the court found that a conclusory statement that “emails must exist” was insufficient to overcome the threshold question of whether there was an inadequate production. The moving party had to present actual evidence that the production was somehow deficient. Moreover, even with such a showing, the moving party had not shown that there was deleted relevant information which could feasibly be recovered by taking a forensic image of the hardware. To do so, the requesting party should have provided information from his forensic imaging expert as to why his methods would have produced relevant deleted information.

The court also examined the requests for production at issue, and found them insufficiently specific to justify the trial court’s order. The moving party made a blanket request for servers, tablets, and laptops, which was insufficient because it did not inform the opposing parties of the exact nature of the information sought.  Specific discovery requests must be aligned with the request for the production of hardware.

The widespread use of ESI to conduct business continues to require attorneys and courts to evaluate how far parties may go to uncover documents through discovery. This case suggests that a party seeking to search its opponents’ hard drives must prepare a detailed and thorough justification of the request before a trial court can permit the searches to proceed.

In Re Pinnacle Engineering, 405 S.W.3d 835 (Tex. App.—Houston [1st Dist] 2013, no pet.).

Admitting Animations into Evidence

Last week, before the Atlanta snowstorms so rudely interrupted my work week, I posted an article written by Ed Josiah from Nautilus Consulting regarding whether and how a construction lawyer can get what otherwise might appear to be a demonstrative exhibit admitted successfully into evidence.

Today, thanks to Paul McCullough at S-E-A -- another Forum sponsor -- we will walk through the  issues that Mr. Josiah raised using S-E-A's capabilities shown in the video above as our example.  I would like to thank Paul for giving Division 1 the right to use this video as a practical example to make the abstract more concrete.

S-E-A created this video from a point cloud.  Wikipedia defines a point cloud simply as "a set of data points in some coordinate system."  S-E-A uses a 3D scanner to create the point cloud you see in the video.  In essence and as Paul McCullough stated to me in an e-mail, "What you are looking at is not a 3D 'model' and it is not an animation.  [Instead] it is millions and millions of data points all with a relative x, y, and z location and a color.  The sum total of these millions of data points [is] the point cloud."  In other words, we have a three-dimensional survey of actual conditions at the project site -- not a modeled hypothesis of what someone believes exists at the project.

In identifying how to admit this point cloud into evidence and as Mr. Josiah's article stated, there are four factors to address to get this video admitted into evidence as an exhibit.  These factors are:

• Witness Competence to testify about the exhibit
• Relevance of the exhibit to an issue or issues in the case
• Proper Identification of the exhibit
• Trustworthiness/Authentication of the exhibit

Let's discuss each briefly after the jump.  For our discussions, we will assume that we have allegations of excessive slab deflection for a poured-in-place concrete floor.

Concurrent Delays Dissected

(c) 2013. Navigant Consulting

In its most recent newsletter, "Insight from Hindsight," Navigant Consulting's Tom Peters provided a fascinating article entitled "Dissecting the Doctrine of Concurrent Delay."  I have linked the article here so that we can discuss it and so that you can read it more closely.  

In the article, Mr. Peters first points out that lawyers and schedulers differ on what effect concurrent delays might have both on the excusability and the compensability of various concurrent delays.  As the table makes clear, nothing is clear when it comes to answering a number of the key questions.  For example, is a delay that is excusable actually excused if the delay occurs concurrently with a non-excusable delay? Some commentators say it is, while others say it is not. 

Mr. Peters then looks at various boards of contract appeal decisions and -- no surprise -- finds similarly conflicting points of view.  As a practice issue, if major articles and treatises cannot agree and if the cases are all over the place, how does an attorney advise his or her client correctly?

This also raises another issue for discussion: with the increase of technology usage in our daily lives, will construction companies be able to harness this technology to improve their as-built and as-happening schedules?  For example, with smart phone cameras now being nearly ubiquitous, will workers be required to take photos every hour to show progress on their work?  Should contractors or owners expect that kind of documentation when faced with delay claims?

Let's hear from you in the comments.