Wearable Litigation – Fitbit Data Could Be About To Set A Legal Precedent

While there are undoubted benefits of using wearable fitness devices, I myself have reservations about the new technology.

My prime concern surrounds the storage and privacy of data produced by the devices – can we be sure it will be retained securely? Can we be certain that the small print on any online agreements we signed do not allow the company to pass off personal data to third parties for marketing purposes? Even more importantly, can we be sure that insurance companies won’t get their hands on personal health information that could then be used to deny policies or bump up the price of cover?

But there is another concern I have. That worry surrounds the use of personal health data for the purpose of litigation, either in favour, or to the detriment, of the wearer.

If you thought such a scenario was unlikely, think again – a courtroom in Canada may very well be the first to hear a case in which data from a wearable device is used as evidence to help settle a trial.

McLeod Law in Calgary is currently working on a personal injury case which is set to become the first to use activity data to help demonstrate the effects of an accident on its client.

Hard data vs subjective opinion

Up until now, personal injury cases have relied heavily upon the opinions of doctors who may only have a short period of observation with which to assess the victim and then suggest the immediate and long-term effects of their injuries.

Such a short, and quite possibly subjective, examination could draw incorrect conclusions which are then relied upon in cases in which victims can potentially receive a very large amount of money in respect of their claims.

So in many ways it makes sense to use empirical data from a smart device which can record the victim’s data and then compare it with a baseline derived from a number of ‘healthy’ people for comparison.

And that is exactly what McLeod Law are set to do via Vivametrica, an analytics program that compares a person’s activity to the general population.

The law firm’s client is a young woman who worked as a personal trainer prior to an accident four years ago. Even though Fitbit wasn’t around at the time, her lawyers say that her job role indicates that she led an active lifestyle prior to the incident. From next week they will start processing data from her Fitbit which they intend to use to show that her activity levels are now lower than other people of a similar age within the same profession.

Open door for further litigation?

While such a move could be highly beneficial to the young woman concerned, it does seem to open the door for less positive litigation surrounding the data taken from wearable tracking devices.

I could imagine a scenario in which prosecutors may want access to similar data and analytics to demonstrate that a person’s condition is not as bad as they claim it to be. Here in the UK, for instance, there are many people claiming disability allowances due to their inability to work. While it is not for me to guess how many are claiming such a benefit unfairly, it certainly seems like the government and media are on a witchhunt against anyone claiming something to which they are not entitled right now – how much of a stretch would it be to imagine court cases in which fitness data could be used to prove that a claimant was in fact fit for work and claiming benefits fraudulently?

Even in future personal injury claims, health data could be used to discredit a claim. As Neda Shakori of McManis-Faulkner wrote recently:

“Depending on the particular wearable, the resulting data may be quite helpful, or hurtful, depending on which side of the courtroom you happen to sit… wearables are yet another example of how technology may be a gold mine of potentially relevant ESI for use in litigation.  Take, for example, a personal injury case where a plaintiff is claiming the injuries he sustained in an automobile accident prevent him from participating in physical activities, such as running.  Suppose further that the plaintiff has worn a fitness tracking device which has been recording every one of his five-mile runs during the past three months.  The data generated by the plaintiff’s wearable device may be discovered in litigation and, as a result, completely discredit plaintiff’s case for damages resulting from the accident.”

So, privacy issues aside, wearables have the potential to both help and hinder within the legal framework, depending upon who is using and interpreting the data they produce.

That’s not to say they are all bad of course – anything that encourages people to participate in more exercise ought to be welcomed but, as always, new technology is a double-edged sword. While we may see a case made for using fitness data to help someone reduce their insurance premiums in the future, the opposite could be just as possible.

So, if wearing a fitness tracker is your thing, think very carefully about who has your data now, who they may choose to share it with, who could demand it, and who may wish to breach the holder of your information in the future.

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