Are Video Game Consoles the Next Ediscovery Frontier?

Over the past few years, social networking, cloud computing and advancements in smartphone technology have captured the attention of the ediscovery industry, law firms, corporations and government agencies alike. Technology advances rapidly and the next “new” source of ESI that will plague practitioners and organizations is not far behind.

One potential new source for data is a household item for many – a gaming system. Gaming systems have continued to push the bounds of technological advancements from the Atari to the modern day consoles that possess the ability to function beyond the traditional purposes of playing video games.

For instance, Microsoft® recently created the Xbox® Kinect™ technology which is “full body gaming” that allows the user to be the controller. Kinect allows users to play interactive games and records users’ activities in the form of pictures and videos that are then stored on the Xbox 360 console (special edition Xbox 360 has a 250 GB capacity). These pictures and videos can then be shared to other users who use Xbox LIVE, or can be posted to a user’s Facebook or Twitter accounts. In addition, there is a component of the system call “Video Kinect” which allows you to chat with friends and family with audio and visual capabilities through the television.

Over the past year or so, we’ve seen a rise in the impact of social networking accounts in the electronic discovery space. As an example, in the case, Romano v. Steelcase, Inc., the plaintiff sued the defendant company claiming loss of enjoyment of life as a result of injuries sustained. However, the defendant claimed a review of public portions of the plaintiff’s Facebook and MySpace pages demonstrated she was able to travel and maintain an active lifestyle. If social networking sites are becoming popular data sources in civil litigation, is it such a stretch then that the data recorded in a gaming system such as Xbox via the Kinect technology may be eventually impactful in the world of ediscovery?

Suppose in the Romano case the plaintiff had played the Dance Central game on Kinect, which involves full body movement and rigorous dance moves. Kinect records her activities in both photographs and video.  The plaintiff then decided to post a picture or video of her playing this game on her Facebook account which is discovered by the defendant. The defendant company’s counsel then files a motion with the court seeking access to the plaintiff’s Facebook account (which counsel did in Romano). Can counsel also seek the data stored in the gaming system if it is identified as being uploaded from the Kinect? What are the privacy implications involved in obtaining this information? Would this fall under the scope of permissible discovery?

A novel issue indeed which may seem ahead of its time. However, based on the rapid speed in which the electronic discovery space has evolved over the past year or two, it may not seem as farfetched tomorrow as it does today.