Discovery on the Internet of Things (“IoT”) and Probate Litigation
November 3, 2020
What does the phrase “Internet of Things” really mean? The Internet of Things, or “IoT”, refers to the connection of everyday objects or devices to the internet, like wearable devices (such as Fitbits, Garmins, and Apple Watches), home electronics (such as Ring doorbell cameras, Nest cameras and home thermostats), devices that use natural language assistants (such as Alexa and Siri), Smart TVs, computer technology integrated into cars (such as the Tesla), and many others. Many objects or devices that are connected to the internet and collecting data, whether by use of the device itself or in the cloud, may likely be part of or be connected to the IoT.
Many times elderly people struggle to adapt to IoT devices – like smartphones that require typing, clicking, or swiping; now they can use voice commands to obtain information and to communicate with others. Instead of learning apps or websites, they can talk to a smart speaker, such as an Alexa device, Siri from Apple, or Google Home, get what they need from family and friends, health providers, and other goods and services.
While these new technologies are fun, useful, and even “cool”, they also increase your digital footprint as well as the potential that your new IoT data may be subject to preservation. What does this mean in the legal context? This means that the data collected may potentially be not only collected but produced in the course of discovery in civil litigation, such as in personal injury cases (like to compare someone’s current activity levels with their activity before an injury), or in dissolution of marriage cases (to show how parties communicated and to whom, including seeking recordings from home devices like Amazon Echo).
What about probate litigation cases? One of the most common types of probate litigation cases are will contests, where claims are made that a will is either the product of undue influence of another upon the testator, or alternately that a testator lacked the requisite mental capacity at the time the will was executed.
Smartphones, emails, hard drives, and text messages are already part of electronic discovery in probate litigation cases, but IoT takes this even further. IoT devices would include such things as security cameras, Amazon Echos or Google Home devices, all of which may record the coming and going of a potential undue influencer, or showing the potential lack of testamentary capacity of a Decedent who was changing their estate plan just before their death. Smart watches, such as the Apple Watch, can detect activity levels, heart rate and falls.
The question then becomes, what information would be sought, and at what cost to discover it in the course of the litigation. How do you get the information or data, who controls it and where is it located? Is it cloud based or on a server? What if a protective order is sought from the Court, or negotiations for purposes of a settlement agreement about this amorphous data information, how much detail is going to be needed in order to assure it is addressed, protected and covered? Preservation is also a concern, whether a standard “spoliation” or “litigation hold” letter is sufficient and if not, what kind of detail is needed to assure this IoT is preserved?
For purposes of using IoT in court proceedings, there are even more questions. How is it authenticated, are there experts then to analyze what it means, and at what cost? Would this this additional complexity and data benefit the case? Would this be the only source from where the relevant and discoverable information would come, or are the traditional sources in these kinds of cases still the most effective (both on the cost and on the information obtained)?
All of those concerns are emerging in this area and your experienced probate lawyer can advise you on whether electronic discovery and the use of IoT in your case may be helpful.