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Santa's Bringing Wearables, With Major eDiscovery Implications

By Casey C. Sullivan, Esq. | Last updated on

Millions of wearable devices will be given as presents this Christmas and Hanukkah, with smart watches stuck in stockings and fitness monitors wrapped up with bows. A few lucky folks might even be able to get their hands on Snapchat Spectacles, the much-hyped glasses that let you take short videos and share them directly to the Snapchat app.

Wearable technological hardware, or "wearables," are coming back this holiday season -- and bringing with them major implications for eDiscovery.

Wearables Never Really Went Away

Wearables include everything from Bluetooth headsets to step-tracking Fitbits to the Apple Watch -- and of course, the infamous Google Glass. A few years ago, wearables were promoted as the next big thing in tech. Everyone would soon have heartbeat tracking wristbands and wifi-enabled scarves, the thinking went.

That didn't exactly pan out as expected. Some consumers have fallen out of love with their Fitbit, now that their phones can track their steps almost as well. Google famously pulled Glass from the market, too, after the brand became tainted by fears of socially maladapted 'Glassholes.'

But wearables never went away, and they could become trendy again, thanks to Snapchat Spectacles. Spectacles, the big, round, colorful glasses sold from vending machines, allow users to hit a button and record a short burst of video that can be instantly sent out over the Snapchat app. That's the same app that has completely entranced young Millennials, who make up the majority of its millions of daily users.

Wearables as eDiscovery Goldmine

But what does this mean for eDiscovery? According to Ray Costello, an operations manager working on eDiscovery at eTERA, many in the eDiscovery industry have taken a "wait and see" approach to the implications of wearables -- but the implications of these devices could be huge.

Writing in Legaltech News, Costello notes that Fitbit's privacy policy. for example, says the company will comply with legal disclosure requirements and that wearable tech has already had an impact on some criminal prosecutions. (Their use in divorce proceedings or employment law disputes is inevitable, if it hasn't already started.)

As for Snapchat's Spectacles, Costello notes that the glasses can capture "more video data than might be immediately apparent, and this could be extremely important to the ESI or discoverability context." That's because Spectacles' snaps play in a circular format, like the shape of the glasses themselves, but can record in portrait or landscape mode at the same time, Costello says, meaning they're capturing image data that's not always displayed.

Rather than a "wait and see" approach, Costello argues that "awareness campaigns, transparency and clarity around the use of the devices and the potential implications as part of the discovery process can significantly mitigate future issues and risk." (Perhaps, but good luck trying to get some teenager to ditch her Snapchat specs.)

In the mean time, Costello advises practitioners to treat wearables "as data-rich, important and potentially vulnerable" as they would a PC or smartphone.

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