Evidence from Wearable Devices

Wearable devices are smart tech gadgets that track all sorts of information while you wear them. More often than not, the information is related to health and fitness. But what else is your FitBit keeping tabs on? Like Facebook and other data-tracking social media, the information collected from the FitBit and other wearable devices may potentially be harmful to your legal claim.

Prosecutors have taken a special interest in evidence that can be obtained from these wearable devices, especially in the case of criminal matters. I have not yet seen it play a role in a personal injury or a workers’ compensation claim, but I guarantee that is coming soon.

Below are times that wearable devices have played a role in determining case result.

  • A personal trainer in Canada wore a Fitbit during an “assessment period” of her personal injury case to demonstrate the extent of her injuries. The data showed that, as a result of her injuries, she maintained activity levels under a baseline for someone of her age and profession.
  • In 2015, a woman alleged that a man broke into her house while she slept, pulled her out of bed, and sexually assaulted her. Police found that her Fitbit told a different story. It revealed that she had been awake and walking around at the time she claimed to have been attacked while sleeping. The Fitbit data, along with other evidence, led investigators to conclude that the woman was lying – and charges were actually brought against her!
  • Christopher Thompson, a doctor in Brentwood, California, was convicted of assaulting two bike riders with his car. Thompson claimed the bicyclists had caused the accident by riding dangerously, but information collected from the cyclists’ GPS devices showed another story. The cyclists had been traveling at approximately 30 miles per hour, and Thompson could have easily passed them. Thompson received a five-year prison sentence.

Data Reliability

The reliability of information collected from wearables devices has been in question. For example, some devices calculate steps based on arm movements. In the reverse, similar devices fail to count steps when a person cycles on a stationary bike. If the wearer forgets to change the battery, data will be lacking or misconstrued. However, attorneys are no stranger to working with questionably accurate evidence. Even witness can have faulty recollection of events! We are trained to attack the evidence if it works against our client’s interests.

Terms and Conditions of Privacy Invasion

Most consumers probably don’t think twice about privacy invasion when purchasing a device like the FitBit. It looks cool and it can hold you accountable for your health and fitness. What more is there to know? A lot, it seems. The question is, are you agreeing to sign over this information just by making the purchase? That’s what courts are currently trying to decide.

When it comes to your claim, insurance companies can’t force a claimant to wear an exercise tracker during an ongoing personal injury case. But they could certainly file a motion to compel the disclosure of the data. After all, Fitbit’s privacy policy states that it will release data “reasonably necessary to comply with a law, regulation [or] valid legal process[.]”

What Does This Mean For You

If you are going to buy a FitBit or other personal health tracking device, you should at least be aware of how that data can be used later on to prove (or disprove) a claim you are making. This is a murky and brand new area of the law. Technology generally causes disruptions in our legal processes. It creates work for the appellate courts. It remains to be seen exactly how personal health trackers will be used in court. But it is a very interesting trend to watch.

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