As more and more devices become able to gather and store data, lawyers in discovery soon will need to obtain information from a dizzying array of appliances and machines.
Only two decades ago, imagining the possible sources of discoverable information took little time or energy. It was in the opposing party’s file cabinets or, occasionally, in records from a mainframe database. Then came laptops, email, CD-ROM, flash drives, smart phones, tablets, collaboration software and cloud storage. Sources sprang up everywhere, and Big Data became the new mantra.
But Big Data just reached puberty, and the offspring are multiplying. Tomorrow, analyzing the data might take the back seat to a bigger problem: finding all the sources. Here’s a look at just some of the places discoverable information lurks.
Cars will have vast amounts of data. According to a February CNN series on 10 innovations that will change the future of driving, “The CNN 10: The Future of Driving,” cars “this year” will be gathering information about driving habits, destinations, listening preferences, speed, braking and other details, such as exactly how the driver reacted at the instant of impact. Soon, cars will monitor the driver’s vital signs, check perspiration for alcohol content and even detect when the driver’s eyes are off the road too long.
Audi is now in beta testing for its “Traffic Light Recognition Technology” that will inform the driver when lights are about to turn green and help drivers travel the right speed to catch green lights. And as the Internet of things flickers to life around us, cars will talk to home appliances, light switches and security systems, often through smart phones or tablets, all generating second-by-second details of our activities and environment.
The auto industry isn’t the only one getting in the game of collecting information about people. Retailers are setting up Bluetooth-based interior transmission or relay devices called “beacons” in stores (and later in homes and offices) to allow constant communication between cellphones and the facility. Apple already has iBeacon installed on its iOS7 mobile operating system, so 200 million iOS devices already can serve as transmitters and receivers.
Retailers will use beacons to give in-store customers product information, flash deals or even contactless payment systems—and allow real-time tracking of the shopper’s every move.
Looking for evidence of consumer confusion because of near-identical trade dress? How about getting details on how many consumers visited the table full of fake designer-label handbags, how long each consumer stayed and what handbag each of those consumers eventually purchased? Then, cross-reference with data brokers to learn each consumer’s handbag purchasing history, education, occupation, income-level and gender.
Will a client’s lawsuit require evidence of equipment movements or mining activity? Planet Labs, founded in 2010, is launching more than 100 small satellites that will “be able to see anything on the planet” and capture images to create a “daily mosaic” of most of the Earth. Planet Labs intends to have 131 in orbit by next year, according to a March 16 story in The New York Times, ” Start-Ups Aim to Conquer Space Market.”
With so much information available from so many sources, how will lawyers efficiently locate, gather and analyze it all? Technology-assisted review—training an artificial intelligence (AI) algorithm to find the few needles in the huge haystack—is just now gaining credibility with courts even as the growth of information volume and sources threatens to render it passé.
In the future, black market tactics might make their way into the mainstream, giving lawyers the ability to buy information from a menu. Yahoo! Finance in February reported about the shadowy “deep web” in ” Your information for sale: the illicit online marketplace.” Shoppers can purchase credit card information, online bank accounts, personal and corporate email accounts, health insurance information and much more.
Also on the menu are rentable botnets—a network of various computers that hackers infect with bots and use to spread spam, launch denial-of-service attacks to major websites and attack bank computers, among other things. Shoppers use identity-masking browsers. All of the involved systems would contain massive amounts of information regarding both legitimate and criminal activities by thousands of businesses and individuals.
Another source of future help for lawyers might be the information systems themselves. In a recent video, Honda’s talking robot ASIMO kicked a soccer ball to President Barack Obama while the press watched. Behind ASIMO’s happy-kid voice and cute antics lurk camera eyes, high-tech sensors and processing capabilities that could support Wi-Fi and cellular data collection, facial and voice-pattern recognition, audio recording, and even air quality analysis and barometric pressure.
One day ASIMO and robots like him will be walking treasure troves of information, but this information source has a unique advantage: ASIMO can talk. Instead of downloading his data, maybe lawyers can just notice him for a deposition.
Even now, smart phones are starting to talk. But all technological advances raise new issues. “Siri, where was your owner on the night of Jan. 25?” How would a loyal-by-design AI respond?
If intelligence suggests the capability for deceit, does artificial intelligence enable deceit algorithms? Will the AI sing like a canary or stretch the truth to save its owner from the hoosegow? And how soon will studying AI issues garner ethics credits—should an AI be forced to testify against its owner, or should there be an AI privilege?
Siri, what do you think?
“Searching for … suitable counsel to represent me.”
Steve Thomas is a shareholder in McGuire, Craddock & Strother in Dallas and serves on the firm’s technology committee. His practice includes commercial litigation on behalf of telecommunications and technology companies. His email address is email@example.com.