By: Jeff Westney
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The Impact of Smartphones and Wearable Technology on Personal Injury Cases
Wearable technology and smartphones are ubiquitous—as is the potentially useful data they collect.
At least one in six American consumers own and use wearable technology—watches and fitness monitors that allow the compilation and exchange of data without the user’s involvement—based on a 2016 study cited in Forbes. The Pew Research Center recently reported that around 250 million people in the United States, 77 percent of the population, own and use a smartphone. Most smartphones come with a variety of health-related applications that measure and provide statistics. Data from these devices often include movement or steps taken by the user on any given day and other health-related metrics such as diet and respiration. With millions of these devices in use throughout the nation, the data they collect could be highly relevant evidence in personal injury cases.
Activity and personal health tracking data, used as part of a dispositive motion or a trial, could potentially be catastrophic to a plaintiff’s case. Someone alleging serious injury, like damage to a back or a knee or other limitations on activity, whose movement statistics reflect multiple miles walked or thousands of steps a day, could face significant questions (or a dismissal). Likewise, a plaintiff claiming serious injury may offer such data as corroboration of their claim.
Discoverable? Admissible? Concealed? Destroyed?
Given the volume of data collected by wearables and smartphones, important litigation questions include whether that data is discoverable, represents an “initial required disclosure” under the Federal Rules of Civil Procedure, or is admissible at trial.
Gaining access to activity-tracking data, as well as other personal “health” information, such as heart rate, sleep and biometrics, might provide valuable information regarding a personal injury claim. Gathering those materials may not be as simple as a discovery request—defense attorneys must also be wary of savvy users who know how to delete such data in preparation for litigation without leaving back-up materials in the cloud or elsewhere. This may require the expensive and time-consuming process of retaining a technology expert and obtaining a discovery order to determine the extent of any spoliation. Defense counsel must also be ready to litigate motions for a protective order filed by a plaintiff based on relevance, privacy, and other concerns.
Federal Rules Considerations
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires that a party produce with its initial disclosures “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” If a plaintiff alleges that her activity is limited because of pain or disability, the existence of stored data on a wearable device or smartphone should be the subject of discovery, whether or not it qualifies as a mandatory initial disclosure “supporting” her claims— perhaps even more so if it refutes her claims. A defendant should not make any assumptions based on the absence of this data in an initial disclosure, and should consider discovery requests to reveal the existence of all such past and current devices and data, as well as the revelation of past and present user accounts associated with them. When possible, a defendant should seek this information well in advance of a deposition of the plaintiff to maximize its utility in questioning.
An Evolving Answer to a Complicated Question
Ultimately, spoliation, reliability and admissibility of such activity-tracking data may require forensic and technology experts, and trigger extensive motion practice on both sides. Counsel must focus on reducing the expense and time of such efforts by structuring their discovery plan to target this activity-tracking data. Such efforts could be worthwhile regardless of the final outcome—contrary data could bar claims or reduce their value, and supporting data will allow a measured assessment of the claim and perhaps facilitate a fair resolution. In any case, activity-tracking data should be considered whenever appropriate and feasible.
Unquestionably, the reliability of data from wearable devices has generated and will continue to generate a storm of arguments, but the accuracy and detail of information appears to be in a mode of constant improvement, without an end in sight, as reported by international research organizations and journals. A variety of courts have addressed preliminary issues in pending cases, without much binding precedent at this point.The optimal solution may be to provide all of this information to an expert, who can consider reliability issues along with the data available, and factor that in to any opinions that are developed.