The Wondrous World of Wearables in Litigation
Owen M. Praskievicz, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Keeping up with technology can be a chore for those who live outside the world of Silicon Valley (or who never step foot in a high school classroom). Seemingly every week a new platform, device or service pops onto the scene that can fundamentally alter how people interact with technology in their daily lives. If a technology sticks around long enough, of course, it permeates the world of the less savvy. It is usually at this juncture that the sometimes-lethargic legal community stands up and takes notice.
So it is now with wearable technology, the Fitbits and Apple Watches that monitor our every step and record the pace of our daily lives in fabulously detailed bytes and charts. The ubiquity of “wearables” is so pronounced, in fact, that civil attorneys—particularly those who ply their trade in personal injury or employment law—are doing themselves and their clients a disservice without having a solid foundation for understanding how these devices fit into our practice.
From the discovery of wearable data to the privacy concerns inherent in their use, this article tackles the basics of where the legal world stands on this most recent wave of technology. Although these issues have so-far been largely absent in the texts of appellate law, there are a host of parallels that provide a good understanding of how best to utilize—or how best to avoid—the use of wearables in a case.
What are Wearables?
Most often, wearables are often worn on an individual’s wrist for close to twenty-four hours a day, recording a person’s steps and activities. Some devices monitor a person’s heartrate, repertory rate, and even skin temperature. If the person connects their device to their iPhone or some other GPS-enabled device, the watch will actually record the person’s precise location at any given time. For the truly dedicated users, these devices can also record a person’s food intake and weight level.
Wearables are not just limited to wristbands, however. They can be chest worn, clip-on, ear-worn, or be applied to smart clothing. Some analysts project the wearable market will reach over $150 billion by 2026 from the $30 billion market it enjoyed in 2016. (See IDTechEx, “Wearable Technology 2016-2026: Markets, players and 10-year forecasts,” July 2016) As many as one in five U.S. consumers own a wearable device. (See Matthew R. Langley, “Hide Your Health: Addressing the New Privacy Problem of Consumer Wearables,” 103 Geo. L.J. 1641, 1643 (2015).)
As the technology grows, so too will the implications for litigation.
Wearables in Discovery?
Naturally, wearable data can be gold for a plaintiff’s attorney who wants to show a decrease in his client’s activities before and after an incident. Conversely, defense attorneys may be just as motivated to track down where a person was at the time of an accident, or whether they were doing precisely what they said they were doing. In one Canadian case in 2014, for example, a Canadian law firm did exactly this when representing a woman who was injured in an accident. See 24 Cath. U. J. L. & Tech. 495. To show their client’s injuries, the attorneys used her Fitbit to measure her activity levels after the accident and compare them with those of an average woman of her age and profession.
Depending on who is doing the asking, there are a multitude of strategies for obtaining or limiting disclosure. The first thing to consider when looking at a party’s use of wearable technology is to see if the information is public. Sometimes a person’s fitness profile will be viewable in a public domain—much like Facebook or Twitter—and in these cases no formal discovery is necessary.
More often than not, however, formal discovery will be necessary. To this end, attorneys should always include wearables in any litigation hold letter. This is especially important considering that data on wearables can often be modified or deleted. Although many wearable companies have databases that store backup information even if a user is able to delete their information, this data may not be permanently available.
After a litigation hold is sent, one of the next steps will be to ask about wearables in initial interrogatories to see what technology, if any, a party has used or is currently using. Be sure to also ask about a party’s employer, as some jobs now offer wearable technology in order to promote their employees’ fitness levels.
Much like anything else in discovery, however, finding out the existence of a wearable is only half the battle. What happens when a party elects not to disclose any information objects on privacy grounds?
It is not entirely clear who owns their wearable data. One company, Fitbit, states that it will “let [the user] decide how [their] information is shared,” but the same policy notes with regard to data stored on their servers Fitbit will comply with disclosure requirements where it seems necessary to pursuant to a law, regulation or valid legal process. This debate is similar to the one taking place in the social media realm, and will likely come down to a corporation’s own policy or a court order.
For those looking to avoid disclosure and protect their client’s privacy, health privacy laws such as HIPAA or the Stored Communications Act may not be much help. Wearable technologies companies, like Fitbit or the Apple Watch, do not fall under the definitions of “health providers, insurers and data clearinghouses, and their business partners,” and thus are not covered by HIPAA protections. Therefore, even though these devices stores vast amounts of health-related data, the fact that their data relates to health does not make it subject to HIPAA restrictions. (See Charles Ornstein, Federal Privacy Law Lags Far Behind Personal-health Technologies, Wash. Post, Nov. 17, 2015.) Likewise, the Stored Communications Act, which limits the disclose of information about its customers involuntarily, the SCA treats personal health data obtained through wearable fitness devices as noncontent records that can be disclosed. (Michel, Carol and Sager, Rick, Law 360, “Wearable Fitness Devices: A New Frontier In Discovery,” March 28, 2016.)
Introducing Wearable Evidence at Trial
Once a party has obtained the wearable data it seeks, it has to figure out how to introduce such data at trial. An opponent of the data will raise a range of objections on hearsay or foundation grounds, noting the inaccuracy or unreliability of the device, authentication concerns, and question about whether person actually wore the device rather than a friend or relative. As mentioned below, there may also be constitutional challenges.
One way to avoid such objections is to get an expert to testify. One scholar has suggested that the best way to get the wearable data before the jury is to have a qualified expert review it and rely upon it as the basis of her opinion. See Laura P. Paton, Sarah E. Wetmore, Clinton T. Magill, How Wearable Fitness Devices Could Impact Personal Injury Litigation in South Carolina, 27 S.C. Law. 44, 48 (2016) (“The most likely way of getting wearable data before a jury is to have a qualified expert review it and rely upon it as the basis of her opinion.”).
Applicable Case Law
Case law has not yet caught up with the promulgation of wearables. One somewhat instructive case, however, is Riley v. California, 134 S. Ct. 2473, in which the Supreme Court wrestled with the search of cell phone data by police officers without a warrant. In a win for privacy advocates, the Supreme Court held that neither the interest in protecting officers’ safety nor the interest in preventing destruction of evidence justified the warrantless search of cell phone data. Some legal scholars have extrapolated this holding to draw parallels between the search of digital content found on cell phones and that which can be obtained from wearables. (See Katharine Saphner, Note: You Should Be Free to Talk the Talk and Walk the Walk: Applying Riley v. California to Smart Activity Trackers, 100 Minn. L. Rev. 1689, 1711 (2016).) This means that language from Riley, though in a criminal case, could be used to protect privacy in a civil context because “[e]ven more so than GPS data, heart rate data has the potential to enable inferences that reveal deeply personal information, such as sleep patterns, sexual activity, physical exertion, and general health, especially when the data is available second by second.”
In another Pennsylvania case often cited as the first of its kind, Commonwealth v. Risley, the police used a Fitbit to determine that a rape claimant was making a false allegation she had been sexually assaulted one night while sleeping in her employer’s residence. Jacob Gersham, Prosecutors Say Fitibit Device Exposed Fibbing in Rape Case, Law Blog, The Wall Street Journal (Apr. 21, 2016, 1:53 PM ET), http://blogs.wsj.com/law/2016/04/21/prosecutors-say-fitbitdevice-exposed-fibbing-in-rape-case.) When authorities analyzed the claimant’s Fitbit, they determined that the claimant was not asleep the night of her alleged assault but awake and walking around her employer’s residence.
Naturally, one can see how such data can be applied to support or undermine a plaintiff’s claims in a personal injury or employment lawsuit. Knowing these implications going into the discovery phase of a case may be highly rewarding.