On September 4th, Samsung announced its Galaxy Gear “SmartWatch”. According to Mashable.com , the watch will contain its own camera, 512MB of RAM and 4 GB of storage. Samsung also announced partnerships with major developers such as Evernote and eBay to produce 3rd party apps meant to optimize use of the device. The device, set for release in October, is far from the first piece of wearable technology and it certainly will not be the last. After completing its funding goal in May 2012, the Pebble SmartWatch project proceeded to raise over $10 million in funding on Kickstarter. As if that is not enough evidence of the market for wearable tech, developers entered a lottery for the right to pay $1,500 for a pair of Google Glass specs. The highly anticipated glasses are expected to be available to consumers by the end of 2013.
While these products are only now moving from the public periphery, it is only a matter of time before they begin to cause headaches in litigation. All of the aforementioned devices have a not-insignificant amount of local storage, meaning that the discovery net will have to widen to ensure data is collected from any wearable smart devices that could provide relevant ESI. The Galaxy Gear and Google Glass both have the ability to take pictures, share, post, and create documents more seamlessly than ever, all of which could easily affect litigation. In addition, these products will almost certainly take location tracking to a whole new level. If you have an employee suing for wrongful termination, it would certainly be pertinent to know that, on days they called in sick, their smart watch tracked them at a Cubs game or dancing to “Twist and Shout” in the middle of a parade.
These products, and one can safely assume future ones as well, are set to draw many additional capabilities from a user’s smart phone and their cloud storage services. Files will be sent back to a phone, increasing the importance of mobile discovery. Not only will they contain more relevant ESI, but a smart phone set to sync automatically with a wearable device that has discrepancies between the files found on each could indicate spoliation, whether intended or inadvertent. Litigants must be diligent in discovery when it comes to identifying cloud storage platforms used in conjunction with these devices. Google Glass, for example, will sync photos with Google+, so any case involving relevant ESI collected from the glasses will also certainly require access to a custodian’s Google account, meaning that litigating lawyers must have the technical know-how to appreciate the connections between the two functionalities.
It is safe to say wearable technology will only continue to expand its influence. Rumors of a potential Apple “iWatch” persist, and if confirmation comes with a marketing campaign and strategy as successful as the iPhone and iPad, these devices will rapidly move to the consumer forefront. Litigators need to be prepared for ways in which wearable technology will push eDiscovery even further.