One in five U.S. consumers are tracking their every movement, from their heart-rate, skin temperature, respiratory rate to their activity levels, food intake, weight, and sleep patterns. With this so-called ‘black box’ for the human body, this data collected through our wearable fitness devices has great potential to be used to bolster or dispute a claim related to personal injury, or even any claim where the individual’s health information is at issue in the case.
To date, wearable device data has not been used too frequently in the courtroom. In March 2015, in Lancaster, Pennsylvania, this data was used to contradict a defendant’s statement that she was sleeping at the time of the crime when in fact the data showed that she was active and awake. In November 2014, in Canada, the plaintiff used her own wearable device data to show that her physical activity had decreased after sustaining an injury in a car accident.
While these uses seem reasonable, there are still many kinks to work out. First, who truly owns the data? The fitness tracker company? The individual? Depending on the privacy policy associated with the wearable device, it all depends. Second, depending on who owns the data, how do you compel disclosure if you need the individual’s password and login credentials? This same issue has arisen when counsel seeks to access an individual’s social media account. Third, the privacy of the information is sticky. Because wearable fitness device companies do not fall under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, the information may not be considered confidential or protected. Lastly, the relevancy and reliability of the data are highly disputed. Not to mention the defenses that could pop up: hearsay objections, inaccuracy or unreliability of the device, authentication concerns, constitutional challenges and just the basic fact of proving whether the individual really wore the device or whether it was a friend or relative instead.
This wearable device data is surely plentiful and could potentially be the smoking gun in many cases. However, discovery concerns still exist. While this data has not been used in many cases thus far, we are sure to see an increase of attempts to introduce this data in the courtroom regardless of these issues.
