Make that Fitbit a lie detector

The rise of wearable tech

Wearable technology and self-tracking devices have become ubiquitous for people of all ages. The American College of Sports Medicine recently named "wearable technology" the number one fitness trend for 2016. The market for these devices is expected to hit $5 billion this year. People now use their smartphones to track and analyze a virtually limitless range of things including steps taken, calories consumed, sleep patterns, heart rate and blood sugar levels.

These self-tracking activities are generally guided by the principle that "if you can measure it, you can change it." This information is analogous to keeping a daily weight chart or even writing a personal diary. The collection and storage of information makes it available for all sorts of potential uses, including discovery in a claim or civil action. Claims professionals who are aware that such data exists can use the investigation and discovery procedures currently in place to obtain the data. To access and interpret that data, you will likely need the assistance of an outside vendor or an in-house IT department, similar to the process used to access and preserve other forms of electronic discovery.

Read on…

A host of personal devices are providing critical data to confirm or disprove an individual's assertions. (Photo: Shutterstock)

A new evidence goldmine

Most claims professionals are already mining social media for clues regarding claimants. This next generation of electronic media investigation taps into other sources of information. GPS devices and cellphones can disclose where a person has been and who he or she may have been talking or texting with at any given time. Photos on cell phones and other storage devices are an often overlooked category of potential evidence.

There are a growing number of sources of data that can supply highly relevant information about a claim. These now include devices that allow people to control their home environments, sometimes with video surveillance. Thanks to the "Internet of Things," which refers to the ability of everyday objects such as thermostats, toothbrushes and umbrellas, to connect to the internet and exchange data, technology is now crossing into all aspects of our lives.

It is easy to imagine how information from these devices could be useful in a litigation context. In a personal injury case, data could be used to show how well a person was before an accident and how his or her activity levels have changed since the person became injured. For example, a plaintiff's lawyer in Alberta, Canada, introduced a plaintiff's Fitbit history in a personal injury claim to show that her activity levels are now lower than baseline for someone of her age and profession. Conversely, from a defense perspective, this information could show that a plaintiff is functioning quite well after an accident and performing the very activities he claims he can no longer perform.

There are now highly specialized mental health apps that ask users to record their emotional state, along with other factors such as alcohol consumption, sleep quality and exercise. This can help users analyze how their mood varies throughout a given time period. Typically, emotional distress claims are evaluated by obtaining medical records or relying on the plaintiff to self-report. However, individuals may be more likely to be honest with their self-tracking devices than with their physician or on an insurance claim form.

For this reason, hard data showing patterns of insomnia, high blood pressure or other physical symptoms of stress can help in supporting or refuting quality of life and emotional distress claims. There is even an alcohol consumption app that allows people to track how much alcohol they drink and the effect on their coordination, reaction times and memory.

The value in the information from wearable devices, much like a photo or video, is that it can be a powerfully persuasive piece of evidence. It has the appearance of objective truth and can corroborate or refute a claimant's subjective contention: It is "data," which has been contemporaneously recorded verbatim. But even better, it was gathered and recorded by the claimant, who will have trouble denying its validity.

Use of wearable devices is not limited to individuals. Some companies and organizations, including professional sports teams, have invested in devices to encourage employees and athletes to be more healthy and productive by monitoring their actual performance. What can this information be used for and by whom? What happens if a player gets traded? Can company information be obtained by third parties in, for example, an auto accident case? This next generation of electronic data raises many legal and ethical questions.

For the purpose of investigating claims, lawyers and claims professionals need to be aware that this goldmine of evidence exists and is simply waiting to be discovered. In the right case, data from wearable devices can have a game-changing impact at trial.

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Discovery and preservation of wearable tech data as evidence

Now that you know what kinds of information may be available, how do you acquire it? Your approach will depend on the type of claim, the issues and the procedural setting. If no lawsuit has been filed, you can incorporate questions about data residing on wearable devices into your investigation. Once litigation has been initiated, discovery requests can be made early on to determine whether the claimant used any wearable or other device and for what purpose, followed by specific requests for such data.

Federal and state rules allow for the discovery of "any … electronically stored information — including … images and other data or data compilations — stored in any medium from which information can be obtained either directly, or if necessary, by the responding party into a reasonable usable form."

One alternative is to make a request to permit entry onto land or other property possessed or controlled by the responding party, so that the requesting party "may inspect … or sample the property or any designated object or operation on it." These rules arguably allow for the inspection of any wearable technology used by a claimant to collect data that may be relevant to the issues in dispute. Obtaining this type of evidence should be no different than gathering other electronic discovery, such as e-mail, and the same procedures should apply.

Although the sheer variety and volume of data available from the different types of devices may seem overwhelming, there are companies that specialize in assisting lawyers and claims professionals in accessing, sorting and analyzing electronic data. The most important first step is to determine what devices may exist and contain data that might be helpful to your case. Then, notify the claimant or opposing counsel of your intent to seek discovery of that data with clear instructions not to delete or alter the information. By putting your opponent on notice, you have preserved your right to discover the information and the other party can be sanctioned for spoliation of evidence should that data be "lost" or destroyed.

Chain of custody and authentication

Counsel should be prepared for challenges to admissibility and authenticity. As with any electronic evidence, data from wearable devices must be legitimate, accurate and related to the issue in question before it qualifies as evidence appropriate for use at trial. Proving authenticity and reliability may be difficult. Information from wearable technology could be susceptible to false readings or even fraud. Different devices record data differently. For example, one type of device might record someone as having taken 5100 steps in a day, while another might record only 2200. There have been lawsuits filed by Fitbit customers alleging that certain models did not give accurate heart rate readings.

Another obvious problem with data from wearable devices is that "self-quantification" lacks rigorous controls. Thus, these devices are not infallible sources of information. As with similar evidence, data from these devices will need a foundation showing that it is what you purport it to be, before it will be admitted into evidence. Then, it will be subject to cross-examination based on many potential criticisms, including accuracy.

Ethical issues and the limits of privacy

Data being collected and stored by individuals on their wearable devices can be unquestionably very personal in nature. But do those who choose to track this data have a reasonable expectation of privacy that could defeat discovery requests or provide a legitimate basis for a motion to quash a subpoena? Arguably, the use of wearable technology by an individual to track his or her activity is analogous to keeping a diary. Just because it is personal and private does not shield it from discovery.

Currently, there is no federal law that prevents health information gathered by wearable devices from being shared with third parties. Some health "apps" routinely share information, such as a user's blood glucose levels, with marketing companies, data aggregators and other websites out of the control of the individual user. Although some applications have privacy policies advising users how information will be shared, most users probably do not review these policies or appreciate their significance. If a wearable device user's information is already being disseminated to third parties, the user's contention that he or she expected privacy is likely to fail.

As more people are using wearable devices to track their personal data, the sources of information that can be gathered both prior to and during the course of litigation and, ultimately used at trial, is increasing exponentially. Attorneys and claims professionals should be thinking about the wide range of sources of information that may be available (including non-wearable devices) and the ways in which this information can impact a case. Although the goal of these self-tracking devices is to increase the user's health and well-being, this technology is also creating a trail of information that can truly provide an evidentiary goldmine to those savvy enough to know where to look.

David M. Governo, J.D., is a partner at Boston-based Governo Law Firm LLC. Email him at dgoverno@governo.com. Susan E. Devlin, J.D., is an associate at Governo. Email her at sdevlin@governo.com.

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