Wearable technology usage is on the rise. Today, "one in six consumers in the United States currently uses wearable technology." Devices such as Fitbit, Microsoft Band, and Apple Watch have technology capable of tracking an individual's daily physical activity. Wearable technology can be thought of "as partial witnesses, ones that carry their own affordances and biases."The data that is collected from these devices can be used in a lawsuit for either a Plaintiff or a Defendant. Due to the growing popularity of wearable technology, and its data collection capabilities, attorneys should begin to utilize these devices to prove or deny damages in a personal injury lawsuit. Defense will be the focus of this blog article.
Piwek L, Ellis DA, Andrews S, Joinson A (2016) "The Rise of Consumer Health Wearables: Promises and Barriers." PLoS Med 13: e1001953 doi. Available at: 10.1371/journal.pmed.1001953
Kate Crawford, When Fitbit is the Expert Witness, ATLANTIC (Nov. 19, 2014), Available at: http://theatln.tc/22fb92A.
Consider this hypothetical: a Plaintiff has been involved in a car accident and is claiming that he is no longer capable of performing the physical activities he once did. Does the Plaintiff have a Fitbit account or similar application? Does the Fitbit or similar device show any change in activity levels before and after the accident? The absence of such changes could significantly undermine the credibility of the Plaintiff's claim.
But how do you get this information? Ask for it in written discovery requests and inquire about it at the deposition. Anticipate objections and be prepared to explain the relevance of the information contained within any "wearable technology devices" utilized by the Plaintiff.
Can discovery of this information be curtailed by Health Insurance Portability and Accountability Act (HIPPA) concerns? HIPPA is only applicable to covered entities and their business associates. Wearable technology device, such as the ones described above, could be considered "covered entities" cited in the statute. Additionally, since these devices must be registered with the entity before the data can be collected and analyzed for medical purposes, wearable technology devices can be considered "business associates" of medical entities covered by HIPPA. However, the information generated through fitness trackers, smartphones, and mobile applications is generally not covered by HIPAA regulations. Thus, generally, the Defendant should subpoena the records with the pertinent data from the wearable technology company of the device.
However, there are a few steps that need to be taken before the data obtained from wearable technology can be used at trial. In order to be admitted at trial as evidence, such data must be authenticated. Since wearable technology devices are connected to servers they can easily be manipulated, and thus savvy Plaintiffs may argue the information is unreliable and inadmissible.
Courts have uniformly held that existing rules of evidence are "generally 'adequate to the task'" of authenticating electronic information and have declined to create new and special rules. In other words, existing Rule 901 of the Texas Rules of Evidence governs the authentication of information obtained from wearable technology. To meet the requirements under this Rule, the Defendant should have a third party service or expert collect and analyze the data in order to present evidence sufficient to support a finding that the evidence is what the Defendant claims it to be in compliance with the Texas Rule of Evidence Rule 901(a). Consult with a data retrieval specialist for more information about the processes available for retrieving such information along with the metadata to ensure accurate and untampered with results.
In conclusion, wearable technology devices are increasingly present in today's society. Using this technology to rebut a Plaintiff's damage claims is an innovative technique of which defense attorneys must be aware and prepared both to collect and to utilize this potentially invaluable information.
See The HIPAA Privacy Rule, 45 C.F.R. Sect. 160.102
Tienda v. State, 358 S.W.3d 633, 638-39 (Tex. Crim. App. 2012).
See TEX. R. EVID. 901(a)