As is typically the case, the advent of new technology brings new opportunities and new challenges in the civil justice system. Just as Twitter, Facebook and other social media have created interesting legal issues for litigants, so too now are Fitbit and other wearable self-tracking devices. With the dawn of this new fitness tracking technology, which monitors such things as sleep, time spent standing and the number of steps taken, there are now new sources of personal and physical data about anyone wearing these devices.
Just one potential use for this data may be playing out soon in a Canadian courtroom. A Calgary law firm plans to use its client’s Fitbit history to support her personal injury claim. The plaintiff in the case was injured four years ago. At the time of her injuries, the plaintiff had been working as a personal trainer. Her lawyers now intend to use her Fitbit data to show that since she was injured, her activity levels have fallen below baseline for someone of her age and profession, and she is thus, entitled to compensation.
What is interesting is that the attorneys will not be using the raw data from the Fitbit in the courtroom. Rather, the data will be “crunched” by Vivametric, an analytics company that compares an individual’s activity to the activity of the general population, as determined by “industry and public research.” That is to say, Vivametric will take a single person’s data, compare it to Fitbit’s massive databank of collected and stored data from other wearers, and will determine whether that person falls above or below the average. Essentially, Vivametric, and other similar companies, will be attempting to define what is “normal” or “healthy.”
Of course, Fitbit is not the only game in town. Other wearable trackers, such as Jawbone UP, Nike Fuelband, and Withings Pulse, have also hit the market, and each has different methods of calculating data. For example, some trackers will consider moving your arms around to be walking, while others will not. With such variability, defining “normal” may prove to be very problematic.
While these difficulties may seem benign on a personal level, when it comes to litigation, the doors for debate are likely to blow wide open. In the ongoing case in Canada, the plaintiff intends to use her Fitbit data to support her personal injury claims. However, under other circumstances, the very same data could be used against the person claiming to be injured. While no one can be compelled to wear a Fitbit or any other such wearable tracker, if someone involved in a lawsuit happens to be a device wearer, Courts will likely compel anyone holding the data to disclose it to an adverse party, like an insurance company, for example. The insurance company could then analyze that data to discredit the wearer’s own statements about their condition or how they feel.
To make matters even more complicated, the data itself may not be what is actually submitted as evidence in Court. Parties will seek to introduce analyses done by companies like Vivametric as evidence of whether someone is “normal” or “healthy” or not. Such conclusions are, obviously, difficult to make, and the civil justice system relies on judges and juries to hear evidence from injured parties, other witnesses, and medical and other experts to determine whether someone is injured and the extent of those injuries. With Fitbits, judges and juries will have the benefit of additional information about the injured party from a sources other than just testimony and snippets of surveillance video. But, how can anyone be sure that this new source of information is reliable?
There can be no doubt that wearable trackers and technology that they rely upon will come under rigorous scrutiny. Courts will likely be asked to judge how these devices collect and track data, and to determine whether or not those methods are sufficiently reliable. And assuming that those questions are answered, there will be even more questions about exactly how the data is analyzed. To be sure, algorithms and other methods used by companies like Vivametric to interpret data collected by Fitbits and other wearable devices will come under intense scrutiny. Courts will have to determine whether the analyses conducted by these companies are reliable enough to be admissible in a court of law.
Wearable trackers are well on their way to becoming the new “experts” on how healthy our lives really are. They can be helpful in promoting positive changes and healthier lifestyles by collecting important and sensitive personal information. But the legal world will have to play catch up with these new technological advances, just as it has had to do with cell phones and social media. The implications surrounding the courtroom use of these new technologies are potentially huge. It is important for personal injury victims to be mindful about all the ways that wearable tracking device data could be used to harm or help their cases. Lawyers too should be prepared to address these issues in discovery, motions practice and at trial.