Wearable devices, the latest trend in technology, could also represent the next rising challenge in discovery disputes. These devices can generate data, including photos and videos, search the Internet, and mine data, such as the location, date, and time when a photo or video was taken. This data may be important in a given case. As such, attorneys should understand how to successfully navigate discovery and admissibility issues relating to information contained in a wearable device.
For example, attorneys seeking wearable device information must be prepared to argue relevancy and reliability of the data being sought. Likewise, attorneys seeking to prevent disclosure of the information must be prepared to defend hearsay objections, argue inaccuracy or unreliability of the device, and raise authentication concerns. As the use of wearable devices becomes more widespread, all litigants must understand this technology and its potential legal implications.
Wearable technology includes devices like smart watches, smart glasses, smart clothing, smart cameras, smart jewelry, implantables, and fitness/activity trackers that are capable of tracking the wearer's daily activities, including exercise, food intake, weight, and sleep patterns. For example, fitness trackers are designed to monitor and record the wearer's heart rate, skin temperature, and respiratory rate in real time. They are based on a three-component accelerometer that measures acceleration against the start and end of a motion as well as its intensity. The devices gather and process data relating to the motion and allow the wearer to view the data on a screen.
Smart watches are wrist-worn devices that connect to a user's mobile phone. They act as mini-windows that provide notifications of calls, messages, emails, or social media updates. Some wristbands track fitness data, such as steps taken, calories burned, and sleep patterns, and send that data to the wearer's mobile device. Smart jewelry is designed to notify the wearer of calls, emails, or texts when the wearer's phone is out of reach. In some cases, heart rate sensors are woven into tank tops or tees (i.e. smart clothing) and can share that data with exercise equipment. The first smart clothing featured sensors integrated into shirts and hats to monitor conditions such as epilepsy.
Smart glasses can take video and transmit the feed in real time. In particular, Google Glass is a computer in the form of a pair of eyeglasses and includes an optical head-mounted display. Functioning much like a smartphone, Google Glass uses voice command to do such things as display maps and allows the user to swipe through driving directions with a finger. Google Glass also has Wi-Fi and Bluetooth capabilities.
The wearable device may also perform complex multifunctional services like monitoring glucose levels and administering insulin as needed. For example, implantables are devices such as insulin pumps or contraceptive rods that are surgically attached under the skin for anticipated medical use.
In Pennsylvania, a woman made allegations of rape that were later disproved by the data obtained from her wearable device. Responding to a 911 call, police found overturned furniture, a knife, and bottle of vodka at the home of a woman who claimed she was raped by a stranger at midnight. The woman told the officers that a man in his 30s who was wearing boots came into the home and assaulted her before raping her.
The woman stated she was asleep and awoke to find the man on top of her; however, a fitness activity tracker (Fitbit) she was wearing told a different story. The tracker, which monitors a person's activity and sleep, showed the woman was awake and walking around at the time she claimed she was sleeping. The Pennsylvania police used the data from the woman's wearable device to help contradict her allegations and to support charges of false report to law enforcement, false alarms to public safety, and tampering with evidence
In Canada, a plaintiff used her wearable device data to show that her physical activity had decreased after she sustained an injury in a car accident. The evidence for the plaintiff included a detailed record of gym visits before and after the accident correlated with heart rate data that showed a significant difference in fitness and activity levels. With real-time data about her activity levels, location, sleep patterns, and quality of life, the plaintiff was able to prevail on her claims.
Data obtained from wearable devices presents potential e-discovery and admissibility issues. Further, because wearables collect and store the wearer's personal health information, privacy issues may arise.
Before trying to obtain electronic data, an attorney must determine where the data is being stored and who controls its storage and release. Additionally, attorneys must review the device owner's privacy policy. For example, some privacy policies state the device company will allow the wearer to decide how their information is shared or released. An exception to most policies is that the company can provide the data without the wearer's consent if disclosure is reasonably necessary to comply with a law, subpoena, or warrant.
When deciding whether to grant a motion to compel data from a wearable device, the court will balance whether the person has a reasonable expectation of privacy against the probative value of the information and how prejudicial it may be to the non-requesting party. In contrast, if the wearer has elected to keep most the data from the device in public view, the information may be available without court intervention.
After determining whether the device wearer or the company maintains control or custody of data, the attorney should forward litigation hold letters. The attorney should also consider noticing the data company to maintain backups of data stored in its archives, which may require obtaining a court subpoena.
Although court decisions regarding the admissibility of social media evidence can provide guidance regarding possible court responses to motions to compel wearable fitness data, social media is typically public while wearable data is personal. Therefore, without compelling arguments regarding the relevance of the wearer's tracking device, the court will likely deny the request.
Although the application of discovery rules and admission of wearable device data in litigation is uncertain, litigants' discovery requests should include wearable data. Additionally, an attorney's litigation hold letters should include detailed instructions to preserve electronic data, including data collected by wearable fitness devices.
Because privacy concerns may arise, litigants must first determine who owns the data sought—the wearable device company or the individual. Secondly, much as when seeking access to an individual's social media account, attorneys must anticipate addressing how data disclosure will be compelled if the individual's password or login credentials are needed. Attorneys should review the applicable jurisdiction's holdings regarding similar password requests for social media accounts.
