Just take a glance while you’re walking down the street, sitting at a meeting, or appearing at court and, invariably, you will see an overwhelming number of people with some form of wearable technology around their wrists. Consumers rely on these devices to monitor all facets of their health from calorie intake—from step counts and distance traveled to sleep patterns and heart rate. These devices serve not only to hold individuals accountable but also as means of motivation and social networking. As the general population’s reliance on these devices has increased exponentially in the past few years, so has the wearable technology’s relevance to litigation and the discovery process. Gartner, Inc. forecasts that worldwide shipments of wearable devices will reach 225 million in 2019, an increase of 25.8 percent from 2018. Litigators need to be mindful that these devices can also serve as a powerful discovery tool that should not be overlooked.
Of course when conducting discovery, attorneys are well-versed in subpoenaing medical records, cellphone records, and personnel files, however most of these records provide only a piece of the puzzle or shed light on post-occurrence information. Though the manner in which litigators conduct discovery has not changed, the development and prevalence of new technologies that plaintiffs utilize evolves daily. No longer is it comprehensive enough to draft interrogatories and requests for production that request information as to the laundry list of social media accounts a given plaintiff may maintain. Facebook, Snapchat, or Instagram may offer valuable information, but with the growth of wearable technology, these new sources of information must be included in discovery requests and subpoenas to provide a more complete legal analysis. Therefore, when conducting your fact investigation into any employment, worker’s compensation, criminal, or personal injury suit, be sure to evaluate if there is additional electronically stored information (ESI) lurking within a health and fitness tracker that may relate to your underlying action.
Below is information on two of the recognizable wearable technology developers on the market along with an explanation of the type of user-information collected as well as how to manage the subpoena process. To note, though ESI from wearable technology is health-related, it is not covered by the Health Insurance Portability and Accountability Act (HIPAA) because the manufacturers do not qualify as “covered entities.” As such, any subpoenas for such information do not require a HIPAA authorization.
Depending on which device was purchased, FitBit collects metrics on steps taken, distance traveled, calories burned, weight, heart rate, sleep stages, active minutes, and location. Additionally, if you allow FitBit Services to access your location, it will collect GPS signals, device sensors, Wi-Fi access points, cell tower IDs, and IP addresses. More information regarding a FitBit user’s usage and interaction with the device is also available.
199 Fremont Street, 14th Floor
San Francisco, CA 94105
Note: This information does not apply to government or law enforcement requests.
Because Apple is not only in the business of fitness tracking devices, its privacy guidelines relate to all of its devices. Unfortunately, Apple provides very little detail into the specifics of its Apple Watch and the type of user-information collected. However, this should not deter a practitioner from exercising subpoena power as most of Apple’s health and Activity applications are maintained in a given user’s iCloud. It would be a best practice to specifically tailor requests to Apple to obtain only the most relevant information.
One Apple Park Way
Cupertino, CA 95014
As individuals’ demand for wearable health monitoring technology continues to dominate the market, practitioners must adapt their discovery techniques to capture all necessary information that may make or break case.
Meghan A. Rigney is an associate at Wiedner & McAuliffe, Ltd, in Chicago, Illinois.