Alexa, the friendly personal assistant voice of the Amazon Echo and Dot devices, can do  everything from streaming music and news updates to ordering pizza.  Alexa also has the ability to answer questions when asked, but one question Alexa may not be able to answer just yet is, “Hey Alexa…Are you Discoverable Evidence?”

The development of technology like the Amazon Echo and Dot raises a very important question in the E-Discovery field about whether these devices’ data records are discoverable in civil or criminal cases.  Recently, for example, this issue has been directly involved in a national news story focusing on police in Arkansas obtaining a search warrant for an Amazon Echo in a murder case. [1] In this case, Benton County Prosecutors and Arkansas police believe that the voice-activated Echo may be able to provide some information on how a man came to be found dead in the hot tub of 31-year-old James Bates.

The Amazon Echo and other voice-activated assistants, such as Google Home and Apple’s Siri, provide information when people use a “wake word” to activate the device.[2]  While these devices don’t necessarily record conversations, they do create a record on their servers of everything users ask, as well as the answers the devices provide.  In the Bates Case, Arkansas police think that, on the night of the murder, someone in the home may have activated the Amazon Echo inadvertently, and, if so, that data may help solve the crime.

On February 17, 2017, in a new filing in the Bates case, Amazon filed a Motion to Quash the Search Warrant for the Amazon Echo data citing First Amendment protections of free speech.[3]  The Motion to Quash states that “Amazon does not seek to obstruct any lawful investigation, but rather seeks to protect the privacy rights of its customers when the government is seeking their data from Amazon, especially when that data may include expressive content protected by the First Amendment.” Id. In the Motion, Amazon argued that the courts have observed, “[t]he fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights.”  Amazon.com LLC v. Lay, 758 F. Supp 2d 1154 (W.D. Wash. 2010).  Id.

While it’s not entirely clear whether Amazon will have to produce any data in the Bates case, it turns out that the Amazon Echo wasn’t the only smart device in the house.  Police also discovered that the Defendant’s home was equipped with a smart water meter that recorded 140 gallons of water being used between the hours of 1 and 3 a.m. on the night of the incident. Police believe that the information found on that device shows that the Defendant may have hosed down his patio and hot tub in order to hide evidence.

It is important to consult with your attorneys when determining any E-Discovery issues you may have. SMGG can help ensure that you’re compliant in any E-Discovery matter and that you are properly storing and preserving all electronically stored information.

If you have a question about what to do with E-Discovery or electronically stored information, please contact Jordan P. Shuber of Strassburger McKenna Gutnick & Gefsky at jshuber@smgglaw.com or (412) 281-5423.

[1] http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/

[2] http://fortune.com/2016/12/27/amazon-echo-murder/

[3] https://www.scribd.com/document/340118806/Amazon-Alexa-Free-Speech

One of the most common questions facing residential landlords and property managers is what to do when a tenant withholds rent. Can a tenant withhold rent from you if there are “problems” with the rental property? What does it mean if a tenant tells you they have issues with, “mold,” “heat,” or “infestation?” Are these types of issues enough to enable your tenants to just stop paying rent all together?  The short answer is no.

Generally, most jurisdictions, including Pennsylvania, have an “implied warranty of habitability” in residential leases. This means that all landlords and property managers in Pennsylvania must comply with this warranty. It is non-waivable and typically tied to your local housing code standards.  Keep in mind that the implied warranty of habitability does not apply to any commercial leases you may have.

So what exactly are landlords and property managers responsible for under the implied warranty of habitability?  The Supreme Court of Pennsylvania has specifically addressed the duties of a landlord in Pugh v. Holmes, 405 A.2d 897, 905 (Pa. 1979).  In Pugh, the Court found that in order for a landlord to breach the warranty, “the defect must be of a nature and kind [that] prevent[s] the use of the dwelling for its intended purpose [of providing] premises fit for habitation by its dwellers.” Id. “At a minimum, this means the premises must be safe and sanitary [however], there is no obligation on the part of the landlord to supply a perfect or aesthetically pleasing dwelling.” Id.  Essentially, the language in Pugh states that in Pennsylvania, you can breach the implied warranty of habitability by failing to provide things like:

So if you fail to provide the things listed above, does that mean a tenant can automatically stop paying rent? Not necessarily. Before a tenant can assert that you have breached the implied warranty of habitability, they must first show:

Furthermore, if a tenant asserts you have breached the implied warranty of habitably, they only have one of three options available in Pennsylvania.  They can:

None of the options above include withholding rent all together.  In fact, the Pennsylvania Rent Withholding Act, 35 Pa. Stat. Ann. § 1700-1, states that “during any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent shall be deposited by the tenant in an escrow account in a bank or trust company approved by the city…and shall be paid to the landlord when the dwelling is certified as fit for human habitation.”  (emphasis added).

So what’s the bottom line for landlords and property managers?

It is important to consult with your attorneys while negotiating lease agreements with tenants.  SMGG can help ensure that your residential lease agreements are providing you with the best protections available and can help you make sure that your tenants are paying on time, every time.

If you have a question about what to do with residential leases, or tenants who are withholding rent, please contact Jordan P. Shuber of Strassburger McKenna Gutnick & Gefsky at jshuber@smgglaw.com or (412) 281-5423.