Millions of people across the globe use some type of wearable device that constantly captures data including health information, fitness levels, location, and much more. These devices, such as Fitbit and the Apple Watch, are often referred to as “wearables.” Experts estimate that over 300 million wearables are in circulation and that the number of wearables could increase 55 percent each year.
Because the use of wearables is so prolific in our society, the data they capture can be a valuable tool to use during litigation. One does not have to look far to find examples of situations where such data could be useful to attorneys litigating a case. For instance, location data from a wearable could be used to prove when employees arrive at or leave work. Health and exercise data from a wearable could be used to show that a personal injury plaintiff is not as severely injured as the plaintiff suggests. Wearable device data could also be used to demonstrate that a party has altered data in another device such as a smartphone (i.e. data such as text messages remain on the wearable device even though deleted from the smartphone).
Like all electronically stored information (“ESI”), the collection and use of data from wearable devices presents challenges. Few court decisions provide guidance on how courts might address issues with wearable device data. Until courts provide more guidance on the use of wearable device data, litigants are best served to treat wearable device data like other ESI such as emails, social media data, and smartphone data. Accordingly, several considerations apply:
- Discoverability and Relevance. Wearable device data presents an obvious target for litigants during discovery. Parties opposing the production of wearable device data are likely to argue that such data is not discoverable because it does not reasonably relate to the claims and defenses in a case. Parties should be prepared to argue why such data is relevant. In a recent New York trial court decision, the court blocked the discovery of Fitbit records during a personal injury case. Spoljaric v. Savarese, 2020 N.Y. Misc. LEXIS 470 (Suffolk Cty. 2020). In that case, the plaintiff had lost 50 pounds during the litigation, and the defendant wanted to obtain Fitbit records to argue that the plaintiff’s activity level during the period he said that he was injured proved that his injuries were not severe. The court found that many factors can contribute to weight loss, and that the request for the Fitbit records was based upon mere speculation, so it denied the request. There is little indication as to how other courts may analyze such requests, but the lesson is that litigants need to be prepared to show why obtaining such data is necessary.
- Authenticity. Parties using wearable device data will be required to demonstrate such data is authentic before the data can be used in court. This could be done through the device user’s testimony or potentially through an expert.
- Reliability. Parties attempting to use wearable device data in court will also be required to demonstrate that such data is reliable. There is a wide range of wearable devices on the market. Some are more reliable than others. Moreover, some allow users to manually manipulate the data. The accuracy of medical data obtained by wearable devices has not been fully tested. Experts may be necessary to demonstrate that the wearable device data is reliable.
Parties litigating cases where wearable device data could be used should consider obtaining and using such data. If you have any questions about the use of wearable device data in court, please contact the Jackson Lewis attorney with whom you work.