Special to the DCN/JOC: Wearable smart devices and ESI

With the holiday season approaching, we thought it would be a good time to discuss electronic gadgets, specifically, wearable smart devices.

The construction industry is already making use of several smart devices with more being developed and incorporated every year. For example, smart watches have gained wide acceptance with the public and with construction workers. These devices can monitor health and daily activity levels. They are also capable of detecting falls and immediately alerting site and emergency services.

Smart boots, with sensors equipped in the soles, can also detect falls or small shocks to the wearer. Some smart boots contain global positioning systems, or similar technology, so that the wearer’s location can be tracked.

Smart hats, or more accurately, headbands that clip inside a worker’s regular safety helmet, can detect fatigue and prevent microsleeps, i.e., brief moments of sleep that occur when you are fatigued.

All these wearable smart devices are part of the Internet of Things and will contain discoverable electronically stored information (ESI). Depending on the situation, this ESI data can be highly relevant to a dispute.

For example, whether an individual was fatigued while operating machinery will be material to any incident investigation.

Prior to widespread adoption of wearable smart devices at an organizational level, an organization will want to consider preservation, ease of collection, and ease of exporting of ESI.

As discussed in our earlier articles, an organization has an obligation to preserve relevant ESI when a dispute is reasonably anticipated. Once the data has been preserved, it will have to be collected then exported in a usable format. Depending on the technology, this may be costly and time consuming.

The nature of data collected by some smart devices can be very personal, thereby triggering privacy concerns. Accordingly, an organization will also want to establish various policies surrounding smart devices. The policies should set out the purpose of the ESI, who owns the ESI, and when the organization will share the ESI.  

Even if an organization has not implemented widespread adoption of wearable smart devices, individual employees may possess them. Therefore, if a dispute arises, an organization should include questions regarding smart devices as part of its custodian interviews to determine if there is relevant ESI which will need to be preserved.

Any potentially relevant ESI should be discussed with the opposing party during the discovery planning stages.

T. James Cass is manager, review services and senior counsel at Heuristica Discovery Counsel LLP.  Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.