text: Fitbit and Wearable Tech Make Their Debut in Court
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  Technology does not usually find its way into the courtroom as quickly as it catches on with the general public. But as social media activity, such as posts on Facebook, has become a growing force in day-to-day culture, it is beginning to appear in court as evidence.
  Now, a new player has entered the game: wearables. Currently, evidence garnered from such devices is infrequently used in courts. That is about to change with the increased popularity of wearable technology, which tracks and stores a variety of data about the daily activities of the wearer.
  Wearable technology has been in use for many years in industries like fitness and health care. Devices allow doctors to track health data and athletes to monitor efficiency and performance.
  The use of gadgets like smartwatches and the Fitbit Flex began increasing among mainstream, non-professional users in 2013, and by 2014, one in five American adults owned some sort of wearable device, according to the PriceWaterhouseCoopers Wearable Future Report.
  The Fitbit and other wearables monitor data like activity levels, sleep patterns, heart rate, blood pressure, diet, exercise and number of calories burned. Some devices are capable of following a user's location throughout the day using GPS technology. Even without the onboard presence of a GPS, daily vitals can easily be tracked.
  Wearable technologies paired with cloud storage ensure there is always an e-trail that provides information on what the wearer was doing on any given day. This can be helpful for people trying to stick to an exercise routine or decrease calorie intake. But the technology also provides a potential wealth of data for insurance companies looking to dispute a claim.
  Currently, wearable data is most often used as evidence in criminal or personal injury cases. In a criminal case a defense attorney is needed to protect the accused’s rights and prove his or her innocence. A personal injury lawyer goes to bat for an injured client who wishes to recover compensation for injuries. The potential for acquiring either accurate or flawed data provided by wearables remains the same in both scenarios.
  In a personal injury case, there is a need to show that an individual injured in a car crash or other accident can no longer perform his or her job, or that his or her life has been changed in a significant way. Often, personal injury attorneys must prove that their client can no longer enjoy the level of activity they once did, indicating that their injuries seriously impact their life. Proving a reduction or cessation in activity after an accident can lead to the award of thousands, if not millions, of dollars in compensation.
  In a criminal case, the accused must defend him or herself against charges. Defense attorneys are beginning to use the black box data generated by such devices on behalf of their clients. However, a prosecutor could also be using the same data in an attempt to prove the accused did commit the crime. Is the e-device data being presented by either side foolproof?
  The smart technology may not be as smart as one would like to think. Miller Leonard, Esq., a criminal defense attorney in Denver, Colorado, says that to challenge such evidence “I would need to hire an expert to make sure that I understood how the tracking information was gathered. As a starting point, you cannot assume that the information is accurate, or that there are not other explanations.”
  A criminal defense attorney would also check to see if any propriety software is used to power the device as an effort to build a case to refuting such data. If that were the case, the court would be asked to order production of the software for the expert to evaluate. “Furthermore,” said Leonard, “if the device in question uses GPS — and many do — I would want to hire a GPS expert to tell me the limitations of such information.” Often, the government may have one version of how technology works that may or may not be accurate, or that may not be the accepted practice within the wearables industry.
  A key point for the defense is to hire a consulting expert to first explain how the technology works, and then to determine how to use this information to attack the technology. The same protocol is applicable in personal injury cases. The attorney needs to thoroughly understand the technology and its limitations in order to prove a client does deserve compensation.
  Currently, the courts typically use doctor evaluations of victims’ medical conditions as evidence in personal injury cases. While a qualified medical opinion tends to carry weight in court, the expert medical witness may have his or her personal bias or be inaccurate. Using fitness trackers may change the way a personal injury or a criminal defense case is put together.
  The first personal injury case using tracking data was launched by a Calgary, Alberta, law firm, McLeod Law, in 2014. In that case, a personal fitness trainer was injured in an accident in 2010. Fitbits were not on the market then, but her occupation clearly showed her as being an active, fit individual.
  Enter Fitbit and the wealth of hard data it offers attorneys. The firm processed the data from the plaintiff’s Fitbit to show her activity levels had dropped significantly from her usual level of activity given her profession and young age. In other words, the data provided corroborated the plaintiff’s assertions that the accident affected her ability to maintain the lifestyle she once did.
  Other attorneys have weighed in on the use of such data, such as James McManis and William Faulkner, based in San Jose, California, who suggest that “data generated by the plaintiff’s wearable device may be discovered in litigation and, as a result, completely discredit [the] plaintiff’s case for damages resulting from the accident.”
  For example, such use of data could apply to the case of a very fit, active plaintiff who ran every day who was involved in a car accident, and who claims the injuries sustained meant he or she can no longer run. If the wearable tracking device shows that the same plaintiff has been running several miles daily since the date of the accident, his or her claim may be deemed false. On the other hand, if the device showed the plaintiff no longer ran after the accident, such claims would be validated.
  Consider a Lancaster, Pennsylvania, rape case in which the plaintiff’s Fitbit information was utilized to prove her sexual assault claims were false. The plaintiff claimed she was asleep when the defendant broke into her house, attacking her. Her Fitbit data revealed she had spent most of the evening walking around her house and was wide-awake. Police charged her with filing a false report.
  The law has not always kept up with technology, but with the advent of devices that may offer proof of various assertions, the law will have to evolve. Fitbit is the tip of the evidentiary iceberg. With the Apple Watch now on the market, the types of evidence potentially collected has exploded to include, but not be limited to: phone calls, social media engagement, geolocation data, activity data, health information, payment history, texting history and much more. Suddenly George Orwell’s Big Brother scenario is beginning to look like a reality, not just a story in a book.
  The wearables market offers a pool of information for users to track their lives and for those participating in a lawsuit in need of information to support their case or refute charges. Understandably, all technology has its limitations. A smart attorney takes the time to delve into those limitations to effectively and efficiently represent their client. Such information may even provide the leverage needed to win a case, or conversely, offer information that results in a loss.
  Is using such personal, ostensibly private information an invasion of privacy? It is illegal? In a word: no, because data is just data. It is information relevant to a case and it does not matter where the data comes from, according to Mike Rhodes of San Francisco’s Cooley LLP. “There’s no intrinsic bar to admitting evidence from wearable tech devices,” Rhodes said. The key to a case involves authentication of all such data obtained from any wearable. The other side is being aware that technology can be defeated in many ways with enough persistence. Knowing the positive and negative sides of all wearable technology is another valuable tool in an attorney’s arsenal.
  Kerrie Spencer
  Kerrie Spencer is a staff contributor to Bigger Law Firm Magazine.