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Posted on: August 11, 2016

in Blog

Pokémon-Go Spawns eDiscovery of Augmented Reality

Walking in Manhattan one evening last month I ran into a crowd of about fifty people at 36th and 5th milling about with their handhelds up. They were on the street, on the sidewalk and double-parked in cars along West 36th Street, obviously stalking one of the periodic table of Pokémon. The hotel on the corner had set up some velvet ropes and a makeshift barrier to keep the sidewalk clear for guests and non-playing pedestrians. Extra hotel security kept a quiet low-key watch. I was excited for the players but my work self wondered how far the hotel was willing to extend itself to accommodate.

Marder v. Niantic the Pokémon Company and Nintendo

I didn’t have to wonder very long. Today I read about Marder v. Niantic, the Pokémon Company and Nintendo, case number 4:16 cv 4300 KAW filed on July 29 in the USDC for Northern California. If you have been off the grid or otherwise unaware, you can learn about Pokémon-Go from this very succinct description in the complaint:

"When a player comes in close proximity to GPS coordinates determined by a Niantic algorithm, the game uses the phone’s camera mode and gyroscope to display the image of a Pokémon, superimposed over the real-world image displayed on the player’s phone screen, as though the Pokémon existed in the real world. By swiping their phone screens, players may then attempt to “catch” the Pokémon to add it to their virtual collections."

The Challenges of Augmented Reality Meeting eDiscovery

Since Einstein, the quantum physicists have figured out that it is possible for a thing to be in two places at once. They have even gotten us to the point of understanding that two things can be in the same place at the same time. But we don’t need an Einstein to figure out that putting an AR (augmented reality) figure on the ground in the real world is going to create some confusion. Consider these:

Just because the figure is ethereal, does it mean the “owners” can place it on private property?
Or, as alleged in Marder, inside the United States Holocaust Museum or in the Mobile Memorial Gardens cemetery? Just because the object is not solid, does it mean that its placement does not offend property rights? After all, property owners also have at least some “air” rights. It will be an interesting legal question to determine property rights with respect to AR figures. Will there be a “plain view” exception like in Fourth Amendment case law? What would keep a developer from putting an AR object in your home?

How many of the 30 million owners of the Pokémon game can fit in the same place at the same time to try to catch it? 
Niantic has taken steps recently to prevent the recent urban throngs tracking the wild Pokémon. Footprints have been disabled and gyms and stops are not as prevalent as they were, but still, with concentrations among millions of players, there are bound to be collisions. Are the game players and owners surfing off the good will and extra expense of property owners and non-playing public? 

What about the players? Assuming Niantic tracks the players, does it also track their identities? 
To keep score, it must at least track their locations and identities when they capture a critter. The Federation of German Consumer Organizations recently threatened Niantic with legal action if it did not make its privacy terms of use more consumer friendly. These issues are focused in yet another US class action filed in Florida state court, Pokémon-Go Terms of Service Lawsuit, Case No. 50-2016-CA-008330, in the Fifteenth Judicial Circuit for Palm Beach County, Florida. 

Do defendants have a data warehouse of locations of players when they’re playing the game? 
They must at least have that information for every captured critter. What are the eDiscovery, proportionality and privacy issues surrounding the mining and discovery of this store of data? There is undoubtedly a huge amount of ESI that will require “big data analysis” to mine and personal identifying information (PII) to worry about. 

eDiscovery Legal Challenges of Pokémon-Go

Marder’s class is defined as all persons in the US who own property within or abutting a Pokémon-Go stop or gym. The causes of action for nuisance, unjust enrichment are primarily property claims. The plaintiffs presumably can discover where defendants placed the Pokémon quarry. It will take a bit of eDiscovery to do that.

Obviously those players who traipsed through plaintiff’s backyard were trespassing if they didn’t first ring the bell and ask permission. They are not named here but it is only a matter of time before they become caught in the legal crosshairs between the game’s developers and, umm, real reality.

Hopefully they will all get along and be safe and not bump into each other or have things and other people bump into them. It is undoubtedly only a matter of time before there is some bumping into and by other people and their things. When that happens, the players’ devices and all of their location services and device behavior will be the subject of preservation and eDiscovery.

 Augmented reality is clearly Next Big Thing in entertainment. Pokémon-Go is just the opening act. Google, Apple and Microsoft all say that they are heavily invested. As 3D and virtual reality renderings and devices get better and faster there will be increasing competition for virtual reality space in the real world. 

What to Consider for Preservation and Scope of Augmented Reality ESI

Our challenge will be to understand the data stores made and kept by the users and developers of Augmented Reality when they do start bumping into real things and people and to make sure we’re prepared. Just in the context of Pokémon-Go, think about:

Identification and Preservation of ESI

  • Do the developers have all the data that plaintiffs need to identify locations, properties, dates and times? 
  • How can the defendants best preserve and produce that information
  • What kinds of custom correlations may be required to produce the lists that plaintiffs ultimately will want?

Scope of Discovery

  • Will players be drawn in as parties, witnesses, or recipients of third-party subpoenas? In this case they are not named but it is a very real possibility for similar or other kinds of actions. 
  • How can users even be identified as custodians? 
  • Where will the needs of eDiscovery cross the boundaries of privacy and proportionality for preservation and collection of essentially personal and private information?


Far from being a naysayer, I love this stuff. I am a big fan of plausible and near-future sci-fi. Think William Gibson, John Scalzi and Neal Stephenson. “Cyberspace” was named and described by Gibson in “Neuromancer” in 1986. It resembles AR we are just starting to realize now. I appreciate the irony of having my fictional pursuits coincide with my professional work. 


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