I Now Call Alexa to the Stand: What Criminal Law Can Learn from Civil Law When It Comes to E-Discovery

by Exterro, Inc.
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More and more, electronically stored information (ESI) is being collected as evidence for criminal cases. The latest example came to light over the new year in the Washington Post article, “Can Alexa help solve a murder? Police think so — but Amazon won’t give up her data.” In a homicide case, investigators found a number of “smart home” devices, including a Nest thermostat, a Honeywell alarm system, a wireless weather monitoring system, and an Amazon Echo. The police seized the Echo and served a warrant to Amazon, stating: “[there was] reason to believe that Amazon.com is in possession of records related to a homicide investigation being conducted by the Bentonville Police Department.”

The gathering of ESI for evidence is nothing new in civil court, with most large corporations who are either facing litigation or who have an expectation of it preserving, collecting, and reviewing millions of documents yearly. And within this sphere, civil cases can sometimes move to criminal cases when they involve fraud, as I wrote about last spring in: Visibility is a Trap: Panopticism, E-Discovery, and the Rich Kids of Instagram.

But this case regarding the use of an “always on” home listening device as evidence in a murder trial is new territory, straight out of cyberpunk science-fiction. As investigators move into this brave new world, there are three considerations regarding ESI that they can pick up from e-discovery best practices familiar to corporate legal teams: privacy, ESI relevancy, and access to emerging data types.

The Comprehensive Guide to E-Discovery Data Collection

Privacy:

So far, Amazon is refusing to release the data, saying: “’Amazon will not release customer information without a valid and binding legal demand properly served on us,’ a company spokeswoman said in an email to The Post. “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.’” The line between security and privacy is a constant issue in today’s world, one that is always changing both with new court rulings and with regional privacy laws. And because data stored in the cloud is everywhere and nowhere at once, it’s sometimes hard to determine what jurisdictions apply.

Relevancy:

Amazon’s objection to overbroad discovery demands is something those of us in the corporate space are no strangers to, especially with the now year-old amendment to FRCP Rule 26 regarding proportionality. In a recent Exterro E-Book, the Hon. Joy Conti, U.S. Chief District Judge; Western Dist. of Pennsylvania said: “You need to know the details about what makes it relevant, where your strong arguments are, and where your weak arguments are. Then you can better show the court if you’re proportional.”  But as the Post points out, “Police did not specify what data they expected to find on Bates's Echo — nor is it clear what the device could have captured that would have been relevant to the case.” As Judge Conti pointed out, this lack of specificity could work against the requesting party.

Collection of Emerging Data Types:

The number of new data types is growing exponentially every day. In order to deal with the potential of possibly needing to collect those new data types if there is litigation, corporations have to create data maps of what data sources there organization uses, as well as BYOD policies to cover the potential to collect relevant data from employee’s personal devices. Chris Sitter, Head of E-Discovery at Juniper, said in a recent webcast that his company currently encounters as many as seventeen-thousand unique data types, meaning they must be able to collect them. Fortunately there are new e-discovery technologies that allow Legal and IT teams to do that in a quick and defensible manner (which I wrote about recently here).

Conclusion:

It’s still too early to know what will come of Alexa’s being subpoenaed for this murder case. But when it comes to ESI, current e-discovery practitioners in the civil space might have some tips on how to face common challenges.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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