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Benjamin Dynkin and Barry Dynkin

We live in a truly digital age. 2.5 exabytes of data are created each day. Mikal Khoso, “How Much Data is Produced Every Day?,” Level Blog (May 13, 2016). Put in other words, we fill 250,000 Libraries of Congress per day. This data comes in all forms, and particularly with the rise of the Internet of Things (IoT), more and more of that data contains information about people, rather than just the systems themselves. Tamara Dull, “Big data and the Internet of Things: Two sides of the same coin?,” SAS Institute. Naturally, this data has begun to seep into our legal system, but lawyers and litigants have not paid close enough attention to how that data can be used to attack witness credibility on the stand. All those who own late model automobiles, computers, smartphones, smartwatches, etc., walk around with a cloud of surrounding data. That cloud is constantly gathering information on where they are, what they are doing, who they are with, and what is happening around them. With a clever forensic technician, an attorney can request access to, and analyze a nigh unlimited amount of data, which can be used to impeach a witness’s credibility to devastating effect.

Unlike social media, where individuals know what they put online for public consumption, people are generally unaware of what data they are generating and retaining and how it can be used against them.

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