You’ve probably noticed that the market for wearable technology like fitness trackers and smart watches is on the rise, but did you know that the data they collect is admissable in court?[1]
Fitbit is a company that makes wearable devices which gather information about your health as your wear them; they track statistics such as steps, heart rate, and will even monitor your sleep.[2] In 2014, Fitbit had approximately 6.7 million paid/active users and sold 10.9 million devices.[3] While the health benefits for these devices are numerous, a few precautions must be shared when it comes to your personal injury case.
1. Wearables May Be Used to Aid Your Damages Claim
A young woman who was injured in Canada last year was the first person to use a wearable device to help strengthen her case.[4] The plaintiff was a personal trainer who was injured.[5] As part of her case, she had to prove the issue of damages (i.e., that her life was different as a result of her injury).[6] In lieu of having her examined by the defense’s medical expert, she was requested to wear a Fitbit to track her physical health and movement.[7] This data was used to aid the jury in calculating how much her injury had impacted her life.[8]
2. Wearables Can Be Used to Impeach Testimony
In Pennsylvania, the opposite situation occurred. Data from a Fitbit was used to disprove a witness’ version of events.[9] A woman called the police to report a crime.[10] She told the police she was attacked while she was sleeping.[11] She voluntarily provided the username and password information for her Fitbit, which police found in the hallway after she claimed it was lost in the scuffle.[12] The data from the device showed the woman was never asleep that night, but rather up and walking around the whole time in direct contradiction of her testimony.[13]
3. They Can Be Considered a Digital “Expert Witness”
If there is a dispute over how badly you are harmed in a personal injury case, there will generally be a “battle of experts.” The defense might hire an expert doctor to examine you and provide a conclusion to how limited your injury is in order to rebut the testimony of your own doctor. But with wearable devices at play, it won’t necessarily be a doctor that testifies against your injury. For users of devices such as Fitbit and Jawbone, it could be a collection of your profile data compared to your own personal data.[14] Injuries in the future may be calculated based on whether or not the data points on your wearable device fall above or below the median for all other wearable users.
None of this is meant to dissuade the use of wearables. The health benefits are numerous; however, when involved in a personal injury action, the data contained in them may be used for or against you in a court of law.
[1] Spela Kosir, Wearables Are on the Rise, Wearable Technologies, available at https://www.wearable-technologies.com/2015/08/wearables-are-on-the-rise/.
[2] See Fitbit, https://www.fitbit.com; Jawbone, https://jawbone.com/
[3] See Eugene Kim, Fitbit’s Growth Has Been Astounding, Business Insider, https://www.businessinsider.com/fitbit-astounding-growth-in-paid-active-users-and-devices-sold-2015-5.
[4] See Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes, https://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-injury-claim/.
[9] See Alexander Howard, How Data From Wearable Tech Can Be Used Against You in a Court of Law, Huff Post, https://www.huffingtonpost.com/alexander-howard/how-data-from-wearable-te_b_7698764.html.
[14] See ‘Wearables’ In Court: How Your Electronic Data Becomes Evidence, Sherbit Blog, https://www.sherbit.io/wearables-in-court/.
