The Newest Field of E-Discovery: You

What does the human body have to do with e-discovery? A lot, potentially.

Up in the Great White North, a law firm is bringing something new into play in the courtroom:

A law firm in Calgary is working on the first known personal injury case that will use activity data from a Fitbit to help show the effects of an accident on their client.

The young woman in question was injured in an accident four years ago. Back then, Fitbits weren’t even on the market, but given that she was a personal trainer, her lawyers at McLeod Law believe they can say with confidence that she led an active lifestyle. A week from now, they will start processing data from her Fitbit to show that her activity levels are now under a baseline for someone of her age and profession.

It’s been coming for some time now in fits and starts; personal data pulled from emails, smartphones social media and the like. But with the burgeoning market of “wearables” that is only going to increase, we are looking at the start of a new field of e-discovery. The human body…

Mcleod Law plans on taking the data they have been tracking on their client’s Fitbit and merging it with another up and coming technology, “big data analysis,” in order to show a decline in their client’s activity level:

The lawyers aren’t using Fitbit’s data directly, but pumping it through analytics platform Vivametrica, which uses public research to compare a person’s activity data with that of the general population…

…His plaintiff will share her Fitbit data with Vivametrica for several months as part of an assessment period.

The firm hopes that the combination will result in compelling courtroom evidence. And it very likely might. But using Fitbit data is only a first step in what is likely to be a burgeoning new area of e-discovery.

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At the moment, people think of e-discovery in terms of emails, electronic documents, and databases. But as wearable technology becomes cheaper and smaller, it is going to become ubiquitous. And it will become ubiquitous in the courtroom. I mean, if it came out that someone had been wearing a Fitbit, or other personal health tracker, prior, during, and post accident, what insurance defense firm is not going to attempt to subpoena that data? Heartbeat, sleep patterns, GPS data, elevation changes, distance traveled per day — it all adds up to provide a lot of information about the general health of a person.

Of course, there is question as to whether or not courts will allow it. My guess is that they will. It might seem odd at first (particularly to non-tech savvy judges), but it’s no different than any other type of e-discovery that has come before. Another question is how will companies like Fitbit respond. There is no mention of providing access to your data in response to a legal inquiry in Fitbit’s Terms of Service. The client in the above matter is voluntarily providing her data to help her case, but what happens when Fitbit is subpoenaed to provide data? Will they push back, citing user privacy, or immediately comply? (Note: I reached out to Fitbit before this story was posted, but have yet to receive a response. If I hear back from them, I’ll be sure to update the post.)

If you need further proof that wearable data is about to be a hot button issue, Reuters reported the FTC is already looking into how Apple plans to protect user data when their Apple Watch is released next year. There is nothing notable or different about the data Apple will be collecting on users versus a Fitbit — Apple is just the biggest target.

Regardless, we are entering a world where everything we do, not just our emails or social media activity, but every step, heartbeat, blood pressure, food intake, and more are going to be discoverable. Govern yourself (and your clients) accordingly.


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Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at keith.lee@hamerlawgroup.com or on Twitter at @associatesmind.

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