Data Provides Wherewithal For Savvy Litigators

The following article appeared in the August 23, 2010 edition of the Connecticut Law Tribune.

Locational information becomes key element in some trials
By Mark Dumas

For the past decade, electronic discovery focused on finding digital evidence that had physical counterparts. Electronic mail had paper correspondence, spreadsheets had ledgers, and databases had catalogs. From this perspective, e-discovery was litigation’s Six Million Dollar Man. It made searching for evidence “bigger, faster, stronger” (and more expensive), but it was ultimately just super-charged paper discovery.

Technologically savvy attorneys eventually took a step beyond viewing e-discovery as just electronic paper by focusing on meta-data, hidden information about the properties of electronic files. While this approach was useful, meta-data never became the evidentiary gold mine that some thought it could be. But now a growing internet trend and the pervasiveness of GPS technology may mark the beginning of a new focal point for e-discovery that could have lawyers sounding a lot like real estate agents. The next wave of e-discovery will be about location, location, location.

Descriptive Data

Unlike meta-data, the nature of “locational data” is easy to understand. It is data that describes a person’s or object’s geographical position. This type of data helps your car’s GPS tell you how to get from your office to your daughter’s soccer game or lets your bank know that someone just used your ATM card in Cabo San Lucas. Locational data is nothing new. It has always been a part of discovery and is found in records ranging from police reports to time cards to email return paths. What has changed is that the data is now more accessible, both in terms of availability and volume, and can be found in new places and forms.

While location may not always be important in every case, in some trials location is critical. For example, in a trade secrets lawsuit, the fact that an engineer visited a competitor’s offices sixteen times in three months could force an early settlement. In a truck accident case, the fact that a driver passed through an intersection thousands of times can convince a jury that the driver should have known that the intersection was dangerous. And what if a social networking website says that an employee was in Las Vegas when he called in sick? You may have a winning defense when he later files a discrimination complaint.

Locating Data

Understanding the importance of locational data is only the first step in using it to win your case. As with most types of evidence, finding it is the problem.

One of the easiest places to look for locational evidence is cell phone records. Cell phone records contain not only the telephone numbers that a caller dials, but also the geographical location from where the owner made the call. Some cell phone companies include this information in detailed billing summaries, but in most instances the information will need to be requested from the service provider. Police investigators have used this approach for over twenty years, but in recent years this information has become more accessible and easier to understand.

Data from Global Positioning System (GPS) devices is another obvious — and incredibly useful — source of locational data. Many companies retain GPS data from cell phones and vehicles for logistical, productivity, and disciplinary purposes. When you think a business in your case uses GPS technology, it is important that you immediately demand that the other side preserve that evidence. Some companies save GPS records for only short periods of time — occasionally for less than a day. Alternatively, GPS service providers for both corporations and individuals often retain GPS records for their customers and are already accustomed to providing this information to law enforcement or companies conducting internal investigations.

A third place to find locational data is from location-based social networking services like Foursquare, Gowalla, and Google Latitude. Location-based social networking services differ from traditional social networking websites because they focus on users’ locations instead of on their comments, photographs, and videos. Although each service has its own features, many involve users “checking in” at stores and restaurants using GPS-enabled cell phones. Users who “check in” can receive discounts and suggestions about nearby businesses, post reviews, and make connections with other users at the same location or with friends who are nearby.

While most social networks have privacy settings that make it difficult to obtain locational data without a discovery request or subpoena, many of these services allow users to cross-publish “check-ins” on traditional social networking sites like Facebook and Twitter where the information may be publicly posted. Even if you can find location-based social networking data without formal discovery, requesting data from the social networks themselves can be helpful if you need more detailed data or information about a business or location rather than an individual.

Using the Data

While finding locational data may not always be easy, using it effectively can be just as challenging. Sometimes this information can provide a “gotcha” moment if a witness lies about his whereabouts or if a party’s location is the key to the case. More often, locational data will only provide an extra point to support the theme of your case.

Some of the less dispositive ways that attorneys can use locational data include showing that an injured plaintiff is leading an active lifestyle, demonstrating that there was a pattern of complaints at a business, or by using location-based social networks to find potential witnesses who were at a location on particular date or who may have interacted with a party. Locational data also provides a great opportunity to provide juries and fact finders with demonstrative evidence that can break-up the monotony of testimonial and documentary evidence.

E-discovery of locational data may never be as valuable as the “smoking gun” e-mail or a favorable eyewitness, but changes in technology and the growing popularity of GPS and mobile internet devices will continue to provide more and new types of evidence for attorneys to use and understand.

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