One in six American consumers currently owns and uses wearable technology—smart devices such as watches and fitness monitors that allow the compilation and exchange of data without the user’s involvement. See Bernard Marr, “15 Noteworthy Facts about Wearables in 2016,” Forbes, Mar. 18, 2016. Activity monitors such as Fitbit are capable of tracking nearly every facet of the human body. The devices compile extensive information on bodily systems—including activity levels, exercise attainment, food consumption, weight, sleep, heart rate, skin temperature, and respiratory rate. They can compile data on location using global positioning system (GPS) functionality. And they can even measure vital signs, stress levels, and hydration levels, and they can be used to monitor diseases and chronic conditions. As the proliferation of these devices—and their capabilities—increases, so also does the potential for their use in litigation.
Production of this information will likely constitute discovery challenges in personal injury and mass tort lawsuits. The use of fitness tracker data in personal injury litigation is obvious: A plaintiff claiming injury could buttress his claim using Fitbit data showing a dramatic decrease in heart rate and other exercise indicia. Conversely, a defendant in the same litigation might hope for Fitbit data showing that the plaintiff continued his four-mile jogging regimen even after his alleged injury occurred. These wearable devices compile an extensive track record of objective data entries that can potentially make or break a case.
Courts are beginning to recognize the relevancy of these devices. The U.S. District Court for the Eastern District of Texas recently granted a defendant’s motion to compel production of electronic media devices, including fitness monitoring accessories. Cory v. George Carden Int’l Circus, Inc., No. 4:13-CV-760, 2016 WL 3460781, at *1 (E.D. Tex. Feb. 5, 2016). In Cory, the plaintiff claimed that a deflated circus slide had collapsed on her head, causing severe injuries. Id. at *1–2. The circus company argued that data from the plaintiff’s electronic devices would weaken her damages claim. Id.
While deeply troubled by the “significant intrusion” of the defendant’s discovery requests, the court ultimately compelled production on relevancy grounds: “[A] mobile app that indicates Plaintiff performs strenuous activities may be relevant to claims of injury or disability.” Id. The court allowed the defendant to access the plaintiff’s mobile phone fitness apps and to copy the activity logs stored there. The court also granted access to all of the plaintiff’s fitness monitoring devices—including Fitbit as well as running/walking GPS systems. The discovery was deemed appropriate because the fitness data were unlikely to be privileged communications or information. Id. at *3.
On the plaintiff’s side, one Canadian law firm recently presented Fitbit data to support a plaintiff’s claim that her activity levels drastically declined due to a car accident. The plaintiff used this evidence to show that her activity levels had decreased more than is typical of someone of her age and profession, thus entitling her to compensation. See Parmy Olson, “Fitbit Data Now Being Used in the Courtroom,” Forbes, Nov. 16, 2014. And in the criminal investigation context, at least one Pennsylvania court has upheld the use of Fitbit data to contradict a 911 caller’s assault claim. See Jacob Gershman, “Prosecutors Say Fitbit Device Exposed Fibbing in Rape Case,” WSJ Law Blog, Apr. 21, 2016. In that case, Fitbit data showed that the alleged victim was actually walking around her house at the time of the alleged attack—and not sleeping, as she had claimed.
Unregulated Devices and Data
Currently, no federal statute regulates Fitbit or other wearable devices. The Health Insurance Portability and Accountability Act does not safeguard the information stored on these devices because they do not qualify as “covered entities” under the statute. See 45 C.F.R. § 160.102(a) (2015); Matthew R. Langley, “Hide Your Health: Addressing the New Privacy Problem of Consumer Wearables,” 103 Geo. L.J. 1641, 1648 (2015). Moreover, it is unlikely that the Food and Drug Administration will ever regulate wearable technology because it is advertised as promoting health instead of serving purely medical purposes. See Langley, supra, at 1649–50. In addition, while the Electronic Communications Privacy Act of 1986 (ECPA) might enable federal regulation in this space, the statute contains a carve-out that allows companies to produce customer records as long as they are not deemed communications. Data from wearables would not constitute a communication under the ECPA because there is no intent to convey information. Therefore, the information would more properly be classified as customer records, leaving the fitness information unregulated and subject to discovery. Langley, supra, at 1642–43.
Although personal injury litigants have no federal statutory concerns, there are still issues presented by federal and state rules of civil procedure and evidence.
Litigation Holds and Spoliation
Fitbit data may be a form of “initial required disclosure” under Federal Rule of Civil Procedure 26(a)(1). See Nicole Chauriye, “Wearable Devices as Admissible Evidence: Technology Is Killing Our Opportunities to Lie,” 24 Cath. U. J.L. & Tech. 495, 520 (2016). Fitbit information relates directly to the allegations in a personal injury complaint. Such information could easily support a plaintiff or defendant’s claims or defenses, by either strengthening or undermining the asserted facts pertaining to the injury. Because the Fitbit user has control over the data (per company policy), discovery requests should be served directly on the user, as was done in Cory. And because a Fitbit user can delete his or her data at any time, defense counsel should request a litigation hold as soon as possible. See Carol Michel & Rick Sager, “Wearable Fitness Devices: A New Frontier in Discovery,” Law360, Mar. 28, 2016. In the context of mass torts, counsel should consider including information regarding personal fitness trackers as a category of information to be disclosed on plaintiff fact sheets.
Potential plaintiffs should take care to preserve their Fitbit information: The deletion of wearable technology data by a personal injury plaintiff could constitute spoliation of evidence. In addition, defense counsel should consider including in discovery requests information from such wearable devices that may have been submitted to a plaintiff’s employer in conjunction with a health insurance wellness program. Any such evidence of physical wellness and activity can undercut claims of permanent or pervasive injury, and GPS data can establish that a plaintiff who claims to have been debilitated was traveling or on vacation during the pertinent time period.
Data from Wearable Technology as Electronically Stored Information
Fitbit data also qualify as appropriate electronically stored information (ESI) under Federal Rule of Civil Procedure 34, which allows for production of data stored in any medium that can be obtained directly from the opposing party. Fed. R. Civ. P. 34(a)(1)(A). Because a Fitbit user can access the information on his or her personal computer, direct access would be present here and entitle the opposing party to production. On this score, plaintiffs might argue that such open-ended production fails the Rule 26(b)(1) proportionality requirement, although such an argument failed in Cory. Defense counsel must narrowly tailor the time frame of requested information in order to satisfy this rule.
Rule 34 also allows a plaintiff who is a Fitbit user to object if the party requesting the ESI fails to specify the form or fails to state the intended use of the information. Fed. R. Civ. P. 34(b)(2)(D). Accordingly, a defendant must give particular reasons for requesting the plaintiff’s Fitbit data and concretely describe the intended use of this information. Blanket requests for the data—merely hoping to find something to undermine plaintiff’s the claim—will likely prove insufficient. Chauriye, supra, at 519. However, if claims alleged in the mass tort setting may be validated or disproven through the use of personal fitness tracking data, courts may enforce discovery for this information. See Cory, 2016 WL 3460781.
Counsel must specify the medium by which they want the ESI data produced—whether via email, screenshots, printouts, or otherwise. Chauriye, supra, at 520. Rule 34(b)(2)(E)(ii) requires production in the form in which the data are usually maintained, if no other form is specified. Absent agreement on another form of production, the data by default would come from printouts or screenshots from the plaintiff’s computer, where the data are typically displayed for the Fitbit user. Id. at 519–20.
Admission of Wearables Data at Trial
Parties seeking to make use of personal fitness data must also demonstrate the touchstone requirements of relevance, authenticity, and reliability.
Relevance may be straightforward. Data on activity levels tend to strengthen or weaken the facts establishing injury. And because some wearables can even measure emotional states or stress levels, there is the potential to have the data admitted for claims of emotional and psychological injury as well.
Authenticity may be established through several channels. See John G. Browning, “Fitbit Data Brings Another Dimension to Evidence,” IADC Comm. Newsl.: Tech., July 2015. Federal Rule of Evidence 901(b)(1) allows the Fitbit owner to authenticate the data through questioning on the stand. Such a person appropriately qualifies as a witness with knowledge under the rule. Rule 901(b)(4) can provide for authenticity through distinctive features of the data—the Fitbit information may, for example, refer to a particular exercise location uniquely associated with the plaintiff, thus proving its genuine tie to that individual. Rule 901(b)(9) could allow evidence about the Fitbit device’s data collection method and accuracy rate to be presented in order to establish authenticity. Under this rule, the proponent may need to present evidence that users do not commonly falsify Fitbit data—for example, by having another individual wear the device in his or her stead. Finally, Rule 901(b)(3) allows for authentication through a computer forensics expert, who could verify the data’s origin. See Browning, supra.
Within the authenticity concern lies the issue of reliability. A personal injury claimant who opposes admissibility might emphasize that Fitbit and other similar devices sometimes erroneously track steps while a user travels by car. Other devices do not easily track cycling as an activity or will sometimes falsely count arm-waving as walking. See Kate Crawford, “When Fitbit is the Expert Witness,” Atlantic, Nov. 19, 2014. The proponent of this evidence must show that its data collection methods are sound, by presenting evidence from the manufacturer on error rates or possibly collecting information on subsequent remedial measures taken to correct earlier malfunctions in the devices.
Even if the raw data cannot be admitted, the proponent may still get the data’s broad strokes admitted through the testimony of an expert witness, who need not rely on admissible evidence in preparing a report or testifying at trial. Fed. R. Evid. 703. The surest way of getting wearable device data before the jury may indeed be to have the expert review it and rely on it as the basis for an expert opinion. See Michel & Sager, supra. Depending on the case, an expert witness could also rely on such data to establish or undermine causation based on the physical metrics shown from the data. The expert might show, for instance, that a plaintiff claiming the particular injury would exhibit biometric readings similar to those displayed in the user’s Fitbit reports.
Fitbit ESI might also feature in consortium claims. Plaintiffs’ spouses claiming they were forced to work more or “fill in” for their injured spouses for income or at home, or that they suffered debilitating depression rendering them unable to work or go about their usual activities, can be impeached with data from such devices showing facts to the contrary. A spike in activity levels, on the other hand, would serve to strengthen those spouses’ claims.
Litigants may also consider employing a third-party data analytics service to handle the Fitbit ESI. In the Canadian case mentioned above, the plaintiff proponent of the Fitbit information employed an analytics company to compare her activity levels with those of her demographic, using industry and public research. This comparison aided her claim that her activity levels had dropped to abnormal levels as a result of the defendant’s negligence. On the defense side, an analytics company could compare a personal injury plaintiff’s activity levels with those of the general population to establish the opposite point—that no meaningful decrease in energy or capacity had occurred as a result of the accident, thus undermining any claim for damages.
As wearables continue to grow in popularity, counsel must realize their evidentiary value and strategically request production of this type of ESI. Fitbit may be the surprise witness to seal your client’s victory.
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