Wearable Technology Evidentiary Issues and Considerations
Nicole R. Gamble, Esq.
Schwartz Semerdjian Cauley & Moot, LLP
Over the holidays the building our firm is located in offered its tenants a chance to participate in a “Holiday Pedometer Group Challenge.” The challenge involved teams comprised of ten individuals wearing a modest pedometer (provided by the building) for six weeks to keep track of their steps. The goal behind the challenge was of course to get everyone motivated via a friendly competition to move (or take steps) during a time when we overindulge in all of the holiday season’s offerings. At the end of the six weeks, the team with the most steps “won” the challenge. A stranger to wearable technology, I thought this would be a perfect opportunity to test out what these types of devices have to offer and how they impact my daily activity. By the end of the challenge, I had grown quite fond of my pedometer and even considered investing in a Fitbit, a high-end version with greater tracking capabilities. Before shelling out the hundred plus dollars on one of these gadgets, I decided to research its features a bit further.
During my research of the Fitbit, I happened upon information about the Apple Watch, a sort of hybrid between a Fitbit and an Apple iPhone, collecting both step information and essentially functioning like a computer. Realizing these devices contain treasure troves of information, I began to ponder the legal implications associated with their inevitable and widespread use.
Evidence from Wearables
Over a decade ago, attorneys began to realize the importance of social media as evidence in a courtroom. Facebook, LinkedIn, and Twitter, to name a few, are particularly ripe sources of relevant electronically stored information (“ESI”) in e-discovery. One fairly new source of evidence for attorneys to consider is the data contained in wearable technology.
In 2014, Forbes Magazine reported on the first known case in which data from a “wearable” was used in court. In this personal injury case, the plaintiff’s attorneys used the data from the client’s Fitbit to show that her physical activity had been severely impacted as a result of her injuries.
In another case reported on this past June, police in a town in Pennsylvania used a rape complainant’s Fitbit data to refute her claim of assault. The alleged victim had said that she was asleep when an assailant broke into her home and attacked her. However, the data from her Fitbit showed that she had been awake and walking around for much of the evening. The alleged victim was subsequently charged with filing a false police report.
Others in the legal arena have noted that data from a wearable could be a great tool to fight a workers’ compensation claim. For example, a wearable with built-in GPS would be most informative in verifying or discrediting an employee’s claim that his or her injury occurred on the job.
While the information collected by the Fitbit is centered around health (that is, activity, exercise, food, weight and sleep are tracked), smartwatches collect this type of information, and much more. For example, the Apple Watch not only tracks the type of aforementioned data, but offers the same features as an iPhone. Thus, the type of data collected by the Apple Watch include: payment information, social media communications, and phone and text communications, to name a few. Though the Apple Watch does not currently have built-in GPS, other smartwatches do.
The reliability of the data offered by the Fitbit, and similar type products, is not without problems. For example, a step-tracking wearable product may count towards the step total mere arm movements. Conversely, a step-tracking product worn on the wrist may fail to receive and count the activity from pedaling on a bicycle. An individual may also forget to wear their wearable product on a particular day or at a particular time, resulting in an incomplete depiction of activity. And of course, there is always the possibility that another individual could wear a wearable device not belonging to them, but which is easily accessible to them.
Litigation and Discovery Considerations
In addition to the reliability issues associated with the data from wearables, legal experts agree that wearable technology presents issues and unanswered questions in the context of litigation and discovery. Among these questions, will courts allow information derived from wearables? How will companies like Fitbit respond to a subpoena regarding a particular user’s data? What types of policies should companies interested in using and/or providing wearables to their employees adopt? After all, according to a study conducted by Cornerstone OnDemand, sixty-six percent of millennials said they would be willing to use wearable technology if it allowed them to do their job better, while fifty-eight percent of total workers were willing.
The United Parcel Service (“UPS”), for example, has already implemented a policy of tracking their employees’ movements through the placement of sensors throughout UPS trucks. Each UPS truck is full of sensors that record when their driver opens and closes the door, buckles their seat belt, and when they start their truck. As a side note, issues over the data the company collects have become part of the bargaining process between the drivers’ union and UPS. Under the drivers’ contract, the company cannot discipline drivers based solely on data, and cannot collect data without telling them.
UPS may not be in the minority for much longer with regard to use of tracking devices and/or wearable technology. A report from market research firm Tractica finds that a wide range of companies are starting to experiment with enterprise applications of wearable technology, from small healthcare clinics to large corporations like General Motors. Some of the devices being tested out include augmented reality glasses, body sensors, wearable cameras, and fitness tracking devices.
As more and more companies consider widespread use of wearable devices, legal experts agree companies should be mindful of various legal issues surrounding the control of the devices and data collection and preservation.
Michele Lange, director of legal technologies for Kroll Ontrack, a data recovery company based in Minneapolis, specializes in issues related to e-discovery and technology’s role in the law. Lange believes that legal professionals and companies using wearable technology will need to address some of the following concerns: who is in control of the device, the format of the data being generated from relevant devices, and how data can be cost-effectively gathered from wearable devices for litigation processing and review.
Lange and other e-discovery experts believe that the best course of action for companies exploring the use of wearables is to implement a “bring your own device” (also known as BYOD) policy, which will mitigate some of the risks associated with employees’ use of wearable technology, and will address issues such as security of the device’s data and preservation and collection of ESI if a regulatory request is issued.
There is still much uncertainty surrounding the data collected by wearable technology and its use in the context of litigation. However, the prudent attorney should take care to familiarize themselves with wearable technology, the types of information captured by these products, consider these devices as potential evidence which could support or refute a claim involving a client (while remaining mindful of reliability issues associated with the data collected by these products), and confer with their business clients on their use of these devices and their company policies on the same.
In the end our firm’s team did not win the challenge. I also recently decided to stop using the pedometer that was provided by the building as I found myself obsessing over my daily steps or lack thereof. And while I find the capabilities of the Fitbit and smartwatches alluring, after writing this article, I decided to hold off on purchasing either, for several reasons…