From the Blog

Watchgate: Could those Red Sox Wearable Apple Watches be Discoverable?

September 6, 2017 eDiscovery

Major League Baseball (“MLB”) investigators determined that the Boston Red Sox stole signals using Apple Watches, a type of wearable technology, according to a New York Time report. MLB allows tablets to be used for scouting reports and teams can use cell phones to make calls between the dugout and bullpen.  However, MLB prohibits the use of electronic devices to steal signals.

The Red Sox Apple Watch investigation serves as an important reminder that wearable electronic devices could be discoverable in litigation or an investigation.  Wearable technology is yet another source of electronically stored information (“ESI”) that may hold potentially relevant evidence. “Wearables” include fitness bands, smartwatches, smart glasses, smart shoes, heart monitoring headphones, etc. These devices collect and store all types of data—personal health, activity, GPS tracking, communications, and video.

The wearable technology market is predicted to double by 2021. Wearables will likely become more common in litigation disputes as these devices and the information they maintain become more prolific. Fitbit device data has already played a key role in criminal and employment cases.  Wearables currently present unique and challenging questions about privacy, reliability, preservation, and security including:

• Who owns the data—e.g., the user vs. manufacturer?
• How secure is data stored on a wearable device?
• Is the data from a wearable reliable?
• How can wearable data be preserved and collected for a legal proceeding?
• How should company Bring Your Own Device (“BYOD”) policies address wearables?

It will be interesting to see how courts wrestle with electronic discovery issues presented by wearables. In the meantime, just remember, there is a duty to preserve electronically stored information relevant to a legal dispute—and that obligation may trigger the need to preserve data from wearables.

Author: Rachael Anna