I heard an interesting radio show on NPR the other day. Auto manufacturers are rolling out the next generation of cars that try to implement the lessons the phone manufacturers learned from Apple, Google, and others. Let's put screens on cars, and give them apps, they say. Let's do for the car what iOS and Android did for phones and tablets. Cars dashboards should have apps, just like any other device. For an interesting story about smart cars, click here for an article about the Tesla Model S.
I will set aside the issue of driver distraction, which I could discuss in the context of why we need autonomous driving. Wouldn't it be great to use all that computer equipment in the car without having to worry about the small matter of actually having to drive the car?
In any case, just as smart phones and tablets changed the PC-centric practices of the eDiscovery industry, smart cars (and eventually all the other smart gadgets) will further change the way we think of eDiscovery, evidence preservation, and spoliation. Once cars have apps, once they leave traces of what people have done and what information they have viewed and heard, and once they leave digital traces of human and machine behavior, litigation lawyers will want to have information that could help them prove their cases. The old days of thinking of eDiscovery in terms of custodians' desktops, laptops, and computer media are long gone. The approaching era of the smart car and smart every-other-kind-of-devices will take us even further away from the bygone days of focusing eDiscovery only on computers.
Yes, we won't be editing office documents with smart car apps while driving, at least not until the era of autonomous driving. So maybe smart car apps don't excite eDiscovery professionals who work on regular business litigation cases. Nonetheless, we may begin to see interest from lawyers who do family law, since individual apps (at least today) are perhaps more relevant to personal behavior. In addition, if the car is tracking or recording voice or text communications, busy people are likely going to be using their smart cars to do business. So it's only a matter of time before smart cars are going to be potential sources of electronically stored information (ESI), even in garden-variety business cases.
What to do? For eDiscovery professionals and business lawyers, we must always watch for potential new sources of ESI. The early use of preservation letters and discovery mechanisms will help to flag and uncover sources of ESI and force the other side to look for it and preserve it. Also, for your own clients' ESI preservation, add smart cars and other devices to your checklist of ESI sources you discuss with your clients. In this day and age, it seems that a broad-ranging discussion of ESI sources coupled with targeted questions will be helpful to identify possible ESI sources. Then, in the course of doing eDiscovery in ongoing litigtion, you can include in your requests information stored on the smart devices you have uncovered earlier in the case.
The smart car articles and news stories show we live in a fast-changing world. eDiscovery practices must change along with it. And a key part of improving practices includes understanding how new technologies change the hunt for relevant evidence.