Wearable Tech: This Season’s Hottest Litigation Accessory?

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We appear to be in the midst of a new fitness renaissance.  Trendy fitness programs such as CrossFit, Zumba and SoulCycle dominate social media mentions, while many others stick with tried and true exercise favorites such as running, swimming, biking, yoga, or a gym membership.  Workouts and personal records are celebrated on people’s blogs, Facebook pages, and Instagram accounts.  The apparent surge in fitness enthusiasm has brought with it a flood of new products designed to take advantage of the market; perhaps none more ubiquitous than wearable fitness trackers, such as those made by FitBit, Nike, Garmin and Samsung. These devices – which can track an astounding array of data, from heart rate to blood sugar to steps taken in a day – are an excellent resource for any fitness enthusiast, or anyone looking to create a healthier lifestyle.  However, the demand for wearable tech designed to track our vital information may also prove crucially important to the manner in which we collect information to be used in litigation.

Never before has there been such an immediate opportunity to collect unfiltered, daily records of a person’s location, level of activity, and general health. Particularly with respect to personal injury claims, the vast amount of data collected by these devices could be invaluable to future legal action. Particularly where this practice is so new – the idea of wearing a personal health tracker would have seemed like science fiction even a few years ago – that there is an absence of any meaningful legislation addressing the propriety of this data, attorneys are scrambling to find the proper way to handle this new development.

For example, there are privacy concerns to consider.  A device which stores personal health information isn’t the same as, say, a file kept in the office of a doctor who has provided treatment to an injured plaintiff.  Where the doctor’s files might be obtainable by a defendant seeking to examine the extent of a plaintiff’s treatment, that same plaintiff’s FitBit might contain extensive information regarding the plaintiff’s physical health, habits, and other data unrelated to the litigation.  Similarly, some personal fitness trackers store the information on the device itself, while others use a “cloud” storage system where the data is actually maintained on a central server owned by a third-party company.  In these instances, an attorney must be careful to consider the proper manner by which the information is requested.

Finally, and perhaps most importantly, any attorney seeking to obtain and utilize the data from a person’s personal fitness tracker must necessarily take caution to exercise the proper ethical considerations in doing so.  Most people uploading their data through these devices would likely consider the information to be personal, and private.  Is the information more akin to that of a medical record, or a personal diary or notebook? Does the simple fact that a person’s information is in fact stored and maintained by a third-party invalidate any claim that person might have to privacy? These are the kinds of questions which are still too new to have any definitive answer, and of which we must be cognizant going forward, and in working out these issues, each attorney must exercise her best discretion.