Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
Federal District Court judge rules on discoverability of Fitbit data
These days, technology is inexorably intertwined with our daily lives. We interact with others online for both business and social purposes. We carry mobile phones with us everywhere we go. We use cloud-based software so that we can access our data and online communications using any internet-enabled device. We purchase and pay for goods online without ever leaving our homes. We wear smart watches and fitness devices that track our every move.
As we head into the post-pandemic world, our experiences with social distancing requirements only served to increase our reliance on technology – so much so that it’s often difficult to envision a world where we’re no longer “connected.”
Because of the ubiquity of technology in our day-to-day lives, it’s no surprise that the data created by and stored in both the cloud and on our devices can be useful in litigation. For that reason, access to this data is often requested during the discovery phase of of a case. Of particular interest in personal injury matters is the data obtained from fitness devices, something I’ve written about a number of times in the past.
Most recently, this issue came up in a federal case out of the Eastern District of Missouri, Eastern Division. In Bartis v. Biomet Inc., Case No. 4:13-CV-00657-JAR, the plaintiffs alleged that a defective artificial hip implant manufactured by the defendants caused them to suffer substantial injuries. One plaintiff, Guan Hollins (“Hollins”), asserted that he continued to experience pain and lack of mobility due to the implant.
During the course of discovery, Hollins shared that eight months after the hip implant was removed he began to regularly wear a Fitbit, and that the device “tracks his number of steps, heart rate, and sleep.” The defendants then made the following discovery request: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”
Hollins objected to the request on the grounds that it was “overly broad, unduly burdensome, not properly limited in time and scope,…not calculated to lead to the discovery of admissible evidence,” and that the data from the device was unreliable.
The Court disagreed, and concluded that the fact that a plaintiff wears a fitness tracking device should not, in and of itself, allow a defendant to engage in a fishing expedition for evidence. But that in the case at hand the data could be relevant to disproving Hollins’ claims of long term injury and pain, and that his objections to the evidence related to its admissibility and weight, not discoverability.
Accordingly the Court determined that the Fitbit data should be turned over: “Plaintiff Guan Hollins shall produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date. Hollins may redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”
This case is yet another example of the increasing relevance that technological advances like fitness tackers have in litigation matters. Because the pandemic’s effects have further increased societal comfort levels with all types of technology, litigators will need to stay abreast of the many tools that store data both locally and in the cloud, and ensure that they fully understand how and where cloud-based data is stored.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.