What do a rape claim in Pennsylvania, a car accident in Canada and an arson case in Ohio have in common? In each one, “wearable technology” was used as key evidence to prove or disprove the claim.

Wearable technology encompasses devices people wear which contain smart sensors and wirelessly connect to smartphones through a web or Bluetooth connection. Certain types of wearable technology can track a user’s activity and store the information for an unlimited amount of time. In civil and criminal litigation, fitness trackers and smart watches are emerging as a potential source of information which could provide valuable data for the prosecution or defense of a lawsuit.

Criminal case in Pennsylvania

For example, when the police in Pennsylvania were investigating a claim of rape, they pulled the data from the victim’s fitness tracker, a Fitbit, to substantiate her story. The victim claimed she was sleeping in her home when an intruder entered her bedroom and raped her. However, the Fitbit data showed that the victim took approximately 1,000 steps after the time she claimed to have gone to bed and prior to calling 911. The investigating officers believed that the “victim” staged the crime scene during those extra steps. After completing their investigation, the police charged the supposed victim with tampering with evidence and filing a false report.

Personal injury in Canada

When a personal trainer suffered injuries in an accident, fitness trackers were not widespread. Four years after the accident, the personal trainer’s lawyers outfitted her with a Fitbit Force to show the plaintiff’s current level of activity. The lawyers gave the data to Vivametric, an analytics company, and that data was compared with the activity of the general population, as determined by “industry and public research.” Vivametric takes a single person’s data, compares it to Fitbit’s databank of collected and stored data from other wearers and determines whether that person falls above or below the average. In this case, the lawyers are hoping the data will support their claim that the trainer’s activity was below average.

Property claim in Ohio

In the arson case, the claimant told investigators that when he saw the fire engulfing his home, he packed some belongings in a suitcase, broke a window with his cane and threw items through the window before carrying them to his car. The claimant also told police that he had a cardiac pacemaker. The police were suspicious of the fire’s origin. They retrieved the claimant’s pacemaker data through a search warrant. The data included the claimant’s heart rate, pace demand and cardiac rhythms before, during and after the fire. A cardiologist determined that it was "highly improbable," due to his medical conditions, that the claimant could do all the collecting, packing and removal of items from his house and then carry them in the short period of time he indicated. In addition, gasoline was found on the claimant’s clothing and the fire started in multiple places. The investigators stated the medical data represented some of the “key pieces of evidence” in the case.

How can litigators use wearable technology in their every day personal injury cases?

The first step, as with collecting any evidence in litigation, is to engage in discovery. Under Florida law, and similarly in other jurisdictions, the rules of civil procedure state that a party can obtain discovery regarding any matter “that is relevant to the subject matter of the pending action.” If a party is claiming they are injured and are no longer as active as they used to be, the data contained on any fitness or activity tracking device is obviously relevant. The challenge in discovery will be to limit the scope of the request to avoid the dreaded “fishing expedition.” The typical objections that could arise when requesting fitness data are that it is burdensome to produce, the data is protected by a right to privacy and the request is not limited in time or scope.

Overcoming objections

It is easy to overcome these objections for the most part. To overcome a burdensome objection, the requestor can provide a protocol for easy download of the information. For example, I created a protocol to download Apple’s fitness data collected by any iPhone (Yes, iPhones are included as wearable technology and automatically track a user’s activity.) or Apple Watch. The protocol outlines step by step how to extract the raw data and takes less than five minutes.

Until there is well established law regarding the discovery of fitness tracking data, the biggest roadblock to discovery will most likely be objections based on a user’s right to privacy. One way to potentially overcome this objection is to determine whether the user shares the information with third parties. Most wearable technology contains a social aspect where a user shares their data with friends or a team, much like social media. Therefore, law on discovery of social media information will be analogous to the collection of fitness tracking data. In Florida, the Fourth District Court of Appeal in the landmark case of Nucci v. Target, held that “photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established…By creating a Facebook account, a user acknowledges that her personal information would be shared with others.” Similarly, by opting to share fitness data with friends, a user acknowledges that his or her personal information will be shared with others. A second way to potentially overcome a privacy objection is by analogizing the fitness data with medical data contained in medical records. A plaintiff’s medical records have long been considered discoverable to prove a plaintiff’s injuries.

Admissibility

After discovery of the data, the next step is to lay the foundation for admissibility at trial. The foreseeable challenges to admissibility are most likely going to be the authentication of the data and the accuracy of the data. There are several ways to authenticate the data, such as questioning the user, identifying data unique to the use of the device like references to a particular fitness goal or hiring a computer forensic expert.

Proving the accuracy of the data will be a bigger problem. For example, Apple admits that its heart rate data is flawed. If anything is blocking the LED lights on the back of the watch which measure the heart rate, such as tattoos or irregular skin perfusion, the heart rate reading will not be accurate. Similarly, Apple states on its website that water immersion while swimming could interfere with accurate heart rate data. Furthermore, irregular movements can confuse any device. Fitbit has also had the accuracy of its heart rate data questioned in a class action filed in 2016 currently pending in Northern District of California. In the suit, consumers from California, Colorado and Wisconsin allege that the heart rate tracking in the Charge HR and the Surge, two products that came to market in 2015, is inaccurate by a "significant margin," especially during periods of intense exercise. Overcoming challenges to accuracy of the data will surely interfere with its admissibility, but it would still certainly be worth trying to admit overall trends in the data instead of an exact number of steps walked in a day or beats per minute of a person’s heart.

With all of this in mind, the challenge will be to find a plaintiff pursuing a claim who utilizes a fitness tracker. This may become less of a challenge in the next few years as experts predict fitness trackers and smart watches will increase in the market by 195 million units by 2020. Furthermore, employers and insurance companies are outfitting people with wearable technology to reduce risks and work place injuries. Several health insurance companies are offering discounts to people who utilize this technology and submit it to show a healthy and active lifestyle.

Wearable technology is constantly evolving and getting better with each generation. It will be interesting to see what happens when the law catches up and whether this data will become a regular part of personal injury litigation, much like social media discovery.