eDiscovery Daily Blog

• March 10, 2017

OK, this first story isn’t exactly an eDiscovery story, but it’s too good to pass up…

Here’s a question for you: Would you believe what a lawyer was telling you during closing arguments if his pants were, literally, on fire?

According to this story from the Miami Herald, this actually happened on Wednesday as Miami defense lawyer Stephen Gutierrez began his closing arguments in front of a jury — in an arson case.

Gutierrez, who was arguing that his client’s car spontaneously combusted and was not intentionally set on fire (hmmm…), had been fiddling in his pocket as he was about to address jurors when smoke began billowing out his right pocket, witnesses told the Miami Herald.

Gutierrez rushed out of the Miami courtroom, leaving spectators stunned. After jurors were ushered out, Gutierrez returned unharmed, with a singed pocket, and insisted it wasn’t a staged defense demonstration gone wrong, instead blaming a faulty battery in an e-cigarette, observers said.

Miami-Dade police and prosecutors are now investigating the episode. Officers seized several frayed e-cigarette batteries as evidence.  Miami-Dade Circuit Judge Michael Hanzman, in the coming days, could decide to hold Gutierrez in contempt of court.

Despite his own demonstration of spontaneous combustion, Gutierrez’s client, Claudy Charles, was convicted of second-degree arson.

Now, on to the eDiscovery story…

Those who remember last year’s battle between Apple and the Justice Department over the Judge’s order for Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters may also remember that the Justice Department asked the court to vacate its order requiring Apple to assist when an unnamed third party was able to access the iPhone.  Here’s another battle that was shaping up over access to data on a device that has ended shortly after it began.

According to Legaltech News (Amazon, Avoiding First Amendment Clash, Drops Objections to Echo Warrant, written by Ben Hancock), Amazon Inc. has agreed to hand over recordings from an “Echo” device that was in the home of a murder suspect in Arkansas, after initially resisting doing so on First Amendment grounds.

In a stipulation filed Monday in the Circuit Court of Benton County, Arkansas, Amazon’s attorneys at Davis Wright Tremaine wrote that defendant James Bates had consented to the production of the recordings from his Echo, and that its motion to quash a warrant seeking the data was now moot.

A hearing on the motion had been set for Wednesday. Bates’s attorney, Kathleen Zellner (most notable for her work in wrongful conviction advocacy and current representation of Steven Avery), said in a tweet Tuesday morning: “We agreed to release recordings-my client James Bates is innocent.”

Amazon’s fight against the warrant seeking data from Bates’ Echo had been closely watched by legal experts as a test of the limits of privacy protections for data gathered by connected devices in consumers’ homes. I guess we’ll have to save that first battle over privacy rights by Echo owners for another case.

Having an Echo in our home and hearing Alexa often say “I didn’t get that” when we’re in normal conversation and not making an Echo request, I can only imagine how much data there is, or how long it’s retained.  Cases like these will continue to illustrate the amount of ESI that IoT devices may hold.

So, what do you think?  Should individuals have privacy rights to the data on their IoT devices, like the Amazon Echo?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.