Never Off the Grid: How to Find and Use Electronic Location Data in Litigation

Digital location information is ubiquitous in our lives – and is on its way to becoming ubiquitous in many areas of litigation. From cell phones and computers to fitness trackers and social media accounts, location data can be used to support a claim or theory, demonstrate a different version of events, bolster or discredit a witness, or establish third-party culpability.

Location and timing data can be derived from computers and tablets, mobile devices, cell phone towers, fitness trackers, cars, apps, photographs, social media accounts, smart home devices like Alexa, thermostats, security systems, refrigerators and other appliances, and more. Amazon and other website order history reports can reveal a person’s location at the time of ordering. Internet of things (IoT) data from home smart devices can show activity history and if someone was at the same location as the device.

Location Information in Litigation

Digital location information has become prevalent in a wide variety of legal matters.

Law enforcement agencies can use location data to track suspects and build a case against them. For example, location data from a suspect’s phone can be used to show that they were at the scene of a crime at the time it was committed. This was utilized in the recent high-profile University of Idaho student homicide case, in which cell phone location data along with video and DNA evidence were used to identify the suspect. Idaho police affidavits documented that during the attack, a phone belonging to the suspect was connected to a cell phone tower near the victims’ location.

Similarly, in this year’s Murdaugh murder prosecution, location data from the defendant and his family (and victims’) phones and cars played a key role in the trial. The data gathered went beyond cell phone tower pings and GPS coordinates – location-adjacent data points like steps recorded and searches by location were also mined and utilized as evidence. In another instance, fitness tracking data was published by the app’s developer, giving away the location of secret US Army bases and posing a threat to national operational security.

The use of digital location information is not limited to criminal cases. In civil litigation, location data can be used as evidence to support a claim. Geolocation data from fitness tracking devices have been used as evidence in cases where the plaintiff alleged inability to leave their home due to serious, permanent physical injuries. Upon analysis, the data can demonstrate an individual’s level and locations of physical activity before and after an accident or injury. See, e.g., Jalowsky v. Provident Life & Accident Ins. Co., 2020 WL 4814286, at *2 (D. Ariz. Aug. 17, 2020) (granting a motion to compel information relating to fitness tracking devices as relevant to the issue of plaintiff’s alleged injuries).

Location data has been used in divorce and custody cases to show a person’s whereabouts and activities. For example, location data from a spouse’s phone can be used to show that they were not where they claimed to be during a certain time.

In cases where intellectual property is at stake, location data can be used as evidence of infringement. Location data from a smartphone app could show that a competitor is using a patented technology without permission.

Employers can use location data to monitor employee behavior and enforce workplace policies. For example, location data from a company vehicle can be used to show that an employee was not using the vehicle for work-related purposes as required. See, e.g., Sanchez v. M&F, LLC, 2020 WL 4671144, at *7 (M.D. Fla. Aug. 12, 2020), (FLSA overtime wage dispute where GPS location data was relevant to arguments relating to time worked).

Location data has also been used to establish personal jurisdiction. In copyright cases where the identity of the defendant is unknown, plaintiffs have successfully argued for early targeted discovery to internet service providers so that they can establish the location of the defendant. Strike 3 Holdings, LLC v. Doe, 2019 WL 1778054, at *3 (D.D.C. Apr. 23, 2019).

Obtaining, Storing, and Accessing Location Data

With its ubiquitous nature, sources of potentially high value location data are not always obvious. When location is critical to a case, make it a priority to seek discovery on all types and sources of data available. In pre-discovery conferences, identify geolocation data sources as a topic and subject of discovery.

Follow by determining through targeted discovery requests the various sources that may be available and the location of the data storage. This can vary by device and service provider, as data is sometimes stored on the device itself and other times stored on company servers. In addition, data may be retained for a limited amount of time. Data extraction methods vary as well, and may require assistance from forensics experts.

Because location data can be ephemeral, evidence preservation notices with specific reference to location data are advisable. Such letters can lay the groundwork for spoliation arguments later if the data is important and is no longer available.

If location data is held by a third-party service provider, a subpoena alone may be insufficient, and the consent of the subscriber may be required. The Stored Communications Act, 18 USC 121, §§ 2701-2712, outlines the circumstances under which electronic communication and location data can be disclosed by a third party provider with or without the subscriber’s consent. 18 U.S.C § 2702(b) and (c) allow for the voluntary disclosure of customer communications or records “with the lawful consent of the customer or subscriber”.

The Federal Rules of Civil Procedure contemplate the obligation to provide information not only in ones “custody” but also in ones “control”. Fed. R. Civ. P. 34(a)(1). Multiple courts have found that information held by a provider subject to the Stored Communications Act is within the “control” of the subscriber for purposes of responding to discovery requests. Mintz v. Mark Bartelstein & Associates, Inc., 885 F. Supp. 2d 987, 994 (C.D. Cal. 2012); Flagg v. City of Detroit, 252 F.R.D. 346, 354 (E.D. Mich. 2008).

If the subscriber will not consent themselves, consider seeking a court order directing the subscriber to consent to disclosure. See, e.g., O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1446, 44 Cal. Rptr. 3d 72, 88 (2006), as modified (June 23, 2006) (“Where a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions.”).

Additionally, 18 U.S.C § 2702(b)(4) allows disclosure by a third-party provider of the contents of communications “to a person employed or authorized or whose facilities are used to forward such communication to its destination.” Consider whether corporate entities (e.g., employers) may be willing to assist by requesting data pursuant to this subsection if the contents of the communications are relevant.

Once location data has been found, it must be stored and accessed appropriately. Often location data contains personal and/or sensitive information that may justify the entry of a protective order governing its use and disclosure. Finally, keep in mind that even after obtaining location data, forensic expertise may be necessary to extract it into useful information for presentation to the trier of fact. And because location data is still a relatively new concept, its use is often subject to legal challenges and privacy concerns.

As it becomes increasingly prevalent in our daily lives, electronic location data will be increasingly important in many areas of litigation. Exploring and investigating potential sources and uses of this data, as well as the laws governing its disclosure and storage, can help attorneys effectively use electronic location data to support their cases. By being thorough in their investigation and practice, attorneys can harness the power of electronic location data to achieve the best possible outcomes for their clients.

By Todd Williams

May 9, 2023

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