Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of April 20-26. Here’s what’s happening.
Health Data Collection in Personal Injury Litigation
At Legaltech News, Tucker Ellis partner Joseph Manno and associate Zachary Kaplan write about the increasing likelihood of litigation surrounding the discovery of health data on devices such as smartwatches and sensors in personal injury cases. Because these devices collect a wealth of information, including positional location, speed, heart rate, sound exposure, and more, compelling production of this personal data could make or break a personal injury case.
Manno and Kaplan write that personal data on a litigant’s phone is electronically stored information (ESI) under Federal Civil Rule 26 that should be discoverable if it provides information about a litigant’s whereabouts at the time of an incident or the litigant’s health, especially if it contradicts testimony. But they also write that litigators should be aware that courts have generally refused to compel production of personal data when requests are not proportional or relevant or when the information sought infringes privacy rights.
For example, in Jennings v. Smiley, the plaintiff asked for unfettered access to the defendant’s iPhone, a discovery request that “cast too wide a net.” In In re 3M Combat Arms Earplug Products Liability Litigation, the defendants sought noise exposure data recorded by the plaintiffs’ smartphones and smartwatches but the court “found that that collection and review of the data could result in the production of other, nonrelevant private health information; and since the device does not identify who was using it, the data’s reliability is questionable.”
Litigators should follow practical tips, Manno and Kaplan write, that include providing evidence that shows why personal device data is likely to yield information relevant to the litigation, tailoring requests to ensure data is not tangential, addressing privacy concerns, and justifying the proportionality of the benefits of producing the data versus the burden.
Additionally, the Stored Communications Act could come into play in these types of matters if relevant health data collected through these smart devices is stored by a third-party source, such as popular fitness apps like Strava. The SCA prohibits disclosure of communications without “the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of a remote computing service.”
Request for Additional Search Terms Denied
Staying on the topic of providing evidence that data is likely to yield information relevant to the litigation, eDiscovery Today writes about the matter of Tremblay v. OpenAI, Inc., in which authors and publishers allege copyright infringement. After the court twice denied the plaintiffs’ suggestion that the requesting party have input in determining the search terms, the plaintiffs sought to add more search strings to their request. OpenAI responded, in part, by stating the plaintiffs’ terms “would add over 9,000 hours of attorney review time with no showing that OpenAI’s productions are deficient.” (emphasis added)
The judge agreed with OpenAI and denied the motion, stating “the court cannot avoid the conclusion that plaintiffs are trying to relitigate an issue they have already lost (i.e., that they should be involved in the search term formulation process without making a clear showing of prejudice stemming from gaps or deficiencies in the search terms disclosed by the producing party).”
Other recent eDiscovery news and headlines:
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