A few weeks ago, I discovered Google’s My Activity system — not only its ability to intrude on your personal privacy by tracking your movements and thoughts on any given day but its utility to my legal practice and the endless possibilities for lawyers like me with respect to the information stored on an individual. Today, a subset of Google’s My Activity feature is being challenged in San Francisco court, namely its location history.
Not only can Google’s system tell you the route you took on your morning commute to work, it also tracks where you went for lunch, what you researched and watched while at lunch, how many stops you made on your way home and significant portions of your day, for years on end.
My Activity, therefore, poses boundless possibilities for lawyers in documentary discovery, examinations for discovery, criminal law, limitations defences, affidavit evidence and, if necessary, service.
In an effort to spearhead the process prior to bringing the motion to compel production before a judge, given that Google’s My Activity has been in the news quite a bit of late, here are some of the ways that lawyers can profit from access to Google’s platform. The possibilities in knowing what plaintiffs and defendants purport to know, where they are and what they’re up to are endless.
At the present time, a plaintiff or defendant is required to produce their GPS records for opposing counsel to track where they have been, prior to discoveries. This is particularly true in motor vehicle actions.
Unfortunately, it is often the case that GPS records are expunged due to the timeline between the accident in question, which could be anywhere from two years since the date of the accident and when the parties actually sit down to conduct examinations. If counsel are able to request logs of My Activity, we would be able to determine a party’s location at any given time.
In order to determine what and how Google stores your information, know this: Any time that you use a voice recognition software on your phone, any time that you have a gmail account connected to your device or computer, any time that you turn on your Google Home Mini, Google is storing what you’re doing and where you are. If you want to know what Google knows about you, simply type “My Activity” into your search bar.
In addition, much like GPS, counsel are permitted to request that a party preserve the information and cease from destroying it. At discoveries, where internet searches and prior history become particularly useful is where a party claims that they know something to “the best of their knowledge.” Requiring access to Google’s My Activity would allow a party to determine whether a particular individual has previously researched or apprised themselves of a specific topic, person or thing.
Allow me to offer an example. A plaintiff in our case claims to not have understood a particular clause in an agreement of purchase and sale prior to signing. Later, they seek to rescind the agreement and, where unsuccessful, claim damages for the vendor’s negligence in explaining the clause. The agreement in this case allots the plaintiff five business days from signing the APS to rescind.
At discoveries, counsel require the plaintiff to produce their activity from Google. We discover that the plaintiff, in fact, researched the particular clause or consulted with a lawyer or external party regarding the clause in the five-day time period. Did the plaintiff have knowledge? Should the plaintiff have rescinded at that time? Are they subsequently truly entitled to damages?
Where Google’s My Activity becomes useful is to demonstrate that they did in fact know something — essentially, that they had knowledge of the clause in question.
In terms of obtaining records of an individual’s activity, the discoverability principle could possibly be rebutted by demonstrating that a certain party was in a certain place or had knowledge of a certain act at any point in time. With respect to the limitations defence, therefore, a defendant may have a defence where it can prove that the plaintiff in fact discovered the loss prior to the date claimed in the Statement of Claim.
Knowledge, information and belief — affidavit evidence
Affidavit evidence is the alternative to physical evidence used in civil litigation to prove that something is true. Often, what one person says is not what another person thinks is the truth. Another way that location or an individual’s web search history would be useful is in demonstrating whether the knowledge, information and belief purported to be accurate is so and proving perjury. Prior knowledge of a certain topic would be detectable through Google’s My Activity: Did the plaintiff or defendant actually not know what they say they did not know?
My initial thoughts on Google’s utility to law in general came in the form of criminal law. Where defendants often offer an alibi in order to escape liability, a requirement to produce your activity could assist in determining where a defendant was at a certain time and on a given date.
This is my favourite topic. Utility to service issues are limited as a plaintiff or defendant must provide access to their logs to another person. However, where My Activity could be useful is in demonstrating prior and deliberate evasion of service by a party and thereafter recovering costs for any motions made for substituted service.
Where is the fine line between civil litigation and individual privacy? I’m not sure. But it seems to be that where psychiatrists’ notes from 10 years prior, discussions between family members and your business records are relevant and require production, in permitting access to Google’s My Activity, the apple wouldn’t be falling too far from the tree.