Five Strategies to Obtain Healthcare Device Data for Use in Litigation

Individuals now have more access to their health data than ever before. Wearable devices featuring digital healthcare technology offer users direct access to their data by tracking movement, fitness, sleep, blood pressure, sound exposure, and other measures of health.

Beyond the vast benefits conferred to individual users, the personalized data gathered by these devices could provide key insights into relevant information and evidence in the context of tort claims. Rather than relying on the representations made by plaintiffs with regard to claims of immobility, lack of sleep, or stress, defendants could obtain such information directly from plaintiffs’ digital healthcare devices. 

There is little precedent regarding access to data on digital healthcare devices for purposes of litigation—indeed, some courts have denied such requests. However, in this rapidly evolving area of law, it makes sense to weigh certain core issues when considering when and how to acquire such data.

The following are core issues to consider, to aid in the acquisition and use of digital health data during litigation:

1. Timing. Request the healthcare data contained in wearable devices early in the course of litigation. Waiting to take depositions or obtain medical records to determine if a digital healthcare device may have been used at some point could delay or impede your ability to gather this information before the close of discovery. Consider requesting information about access to or use of a healthcare monitoring device via written discovery requests at the outset of litigation. Also, to avoid any spoliation, request that the plaintiff preserve such data once an action has been filed.
2. Investigation. Consider performing a sub rosa investigation by searching the plaintiff’s social media or hiring an investigator to obtain images of the plaintiff wearing a digital healthcare device. Beyond watches, rings, and wristbands, most smartphones are equipped with health data tracking and further provide downloadable applications that track the user’s movements, sound exposure, workouts, blood pressure, and other health measures throughout the day. Gathering evidence that a plaintiff uses a digital healthcare device will bolster your requests to compel its production.
3. Scope. Be sure to narrowly tailor your request for data by explaining its direct relevance to the claim at issue and by requesting only data related to the alleged injury and relevant time frame. Avoid broad request parameters that could be characterized as a fishing expedition or harassment. See Spoljaric v. Savarese, 2020 WL 611911 (N.Y. Sup. Ct. Jan. 28, 2020) (denying access to plaintiff’s wearable device data on the basis that it was a fishing expedition to explain how she lost weight following a car accident despite her injuries). To the extent that the plaintiff does not possess the relevant data, consider subpoenaing it from the device or application developers.
4. Procedure. Meet and confer with opposing counsel regarding the discovery of the plaintiff’s healthcare data. Most jurisdictions require that the parties attempt to resolve their issues informally to save time and money and foster judicial economy. Seeking court intervention is generally permissible only when a party can establish that a discovery dispute exists. See Whitmire v. Perdue Foods LLC, 2022 WL 59720 (W.D. Wash. Jan. 6, 2022) (denying motion to compel responses and production of health tracking data because parties failed to meet and confer in good faith). Accordingly, documenting the repeated requests for information and the various attempts to obtain the necessary information is essential. By establishing the plaintiff’s refusal to turn over the desired data, a party can likely show the necessity of judicial intervention.
5. Experts. Consider the use of experts to explain the data and the data’s reliability. A physician can offer valuable testimony to discount the plaintiff’s claims in light of the data procured by the plaintiff’s device. For example, an orthopedic doctor could help explain to the court why the number of steps a plaintiff takes per day directly undercuts the plaintiff’s claim of immobility following a personal injury. Moreover, a data expert could attest to the authenticity and reliability of the data gathered by such devices, undercutting the plaintiff’s inevitable challenges. See Bartis v. Biomet, Inc., 2021 WL 2092785 (E.D. Mo. May 24, 2021) (plaintiff’s challenges to the reliability of data gathered by wearable activity trackers go to the admissibility and weight of the evidence).

While the process of digital healthcare data collection continues to evolve, we anticipate a greater focus on ways to obtain and use the data in litigation. We forecast that digital healthcare data, just like medical records, will be introduced and relied on at trial to establish or refute personal injury claims.