Bloomberg Law
Nov. 10, 2022, 9:00 AM

Why the Metaverse is Tricky for Data Collection and Discovery

Mallory Acheson
Mallory Acheson
Nelson Mullins Riley & Scarborough
Jason I.  Epstein
Jason I. Epstein
Nelson Mullins Riley & Scarborough

Metaverse or virtual reality adoption is growing fast despite the volume, sensitivity, and wide-ranging types of data collection. The immersive experience of a digital avatar may include use of biometric goggles and haptic vests that collect data on an individual’s walk, breathing patterns, eye movements, facial reactions, and inferences around these.

A recent report from McKinsey & Company notes that more than $120 billion has been invested, and by 2030 the value of the metaverse could reach $5 trillion. Companies are leveraging public and private metaverse worlds for business activities such as marketing campaigns, customer support, e-commerce, product design, training for employees, team meetings, public events, and conferences.

While businesses are reaping the benefits of this technology, there is already litigation involving intellectual property rights in the metaverse, and public outcry about harassment and assault in digital worlds. Inevitably, metaverse litigation will evolve, and electronic discovery may be a key hurdle for metaverse litigants.

While the metaverse may be a new concept to many, collection and production of electronically stored information is not. Industry standards and processes for collection of video, audio, and message content likely will be adapted for specific collection in the metaverse. Some unique features of the metaverse, however, highlight unique issues in the virtual-reality industry.

Federal Rules of Civil Procedure

Practitioners generally refer to the Federal Rules of Civil Procedure Rules 26 and 34, for relevant and discoverable requirements, which allow discovery of any non-privileged matter that is relevant and proportional to the needs of the case and within the responding party’s possession, custody, or control. This includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium where information can be obtained.

With the federal rules in mind, there are at least three questions to consider: What might be relevant and discoverable? Where is the data located? And how can we collect and present the data to comply with e-discovery requirements?

What might be relevant and discoverable?

The interplay between the federal rules and the metaverse will likely be complex. For example, we may see far-reaching requests for various types of information including data surrounding source code or design development in intellectual property matters, research and security procedures in harassment and assault allegations, and age verification and protection checks in matters concerning minors. There may also be requests for biometric recordings and geographic locations of individuals concerning allegations in a public event or company meeting.

Broad discovery requests for all relevant documents and communications are already an issue in electronic discovery and due to the broad nature of data within the metaverse, we will likely continue to see a hard line drawn for narrowed and detailed discovery requests and objections.

Where is this data located?

The decentralization and interoperable nature of the metaverse will also likely create questions surrounding possession, custody, and control.

Depending on the nature of the business use, a company may not have all information that the metaverse platform or technologies, such as biometric goggles and haptic vests collect. Likewise, the party that actually possesses specific data may vary, and these questions may end up involving discovery into the metaverse platform to determine where the data resides and if it is reasonably accessible.

An additional layer of difficulty arises when the data requested comes from an unfamiliar avatar, as the physical characteristics and name of an avatar in the digital world may not be the same as in our physical world. Identifying the accessibility and proportionality of data surrounding individuals and activities in the metaverse will play a key role in discovery positions and responses in the future.

How can we collect and present this data?

How to collect and present this information in a usable format required by federal rules—as well as necessary for a judge or jury to understand—is a final layer of complication. Emerging technologies in the legal discovery realm are common. Software companies are constantly evolving and developing new and existing products to efficiently collect and present data.

For instance, mobile data, ephemeral data, and video communication have risen in the era of remote work, resulting in new volumes and data types for e-discovery practitioners. With this era also came technology developments to standardize the discovery of these data types. However, this evolution can take time.

While mobile data use began more than five decades ago, we have only recently seen the emergence of technologies designed specifically to allow legal teams to process, review, and present data in a similar format. The metaverse is only at the beginning phase of this process, so while there is no doubt that we will see a rise of technologies related to metaverse data, it may not be in the near future.

In the meantime, we can reasonably foresee a multitude of discovery proportionality and burden objections as litigation in this area grows and the volumes and types of data bring into question the cost and efforts of collecting and presenting information in proportion to the needs of the case. To prepare, companies venturing into the metaverse should become knowledgeable on the data they are collecting, contributing, and potentially creating.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Mallory Acheson is an attorney at Nelson Mullins, where her practice focuses on privacy and security compliance, technology transactions, and the intersection of data and electronic discovery issues.

Jason I. Epstein is a partner at Nelson Mullins and co-head of the firm’s technology and procurement industry group.