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Personal Activity Trackers and Their Impact on Personal Injury Litigation

Written by: Ashley Gowder Mitchell, Esq.

Data stored in Fitbits, Apple Watches, and other wearable personal activity “trackers” can be invaluable when evaluating and defending personal injury claims. These devices offer attorneys and claim professionals a wide array of relevant and easy to use information. Mining these devices for key evidence will only become more commonplace as the popularity of trackers increases. It is important for litigators and claims handlers alike to be familiar with personal activity trackers, the data they create, and how to obtain and use that data to defend claims. Data stored in Fitbits, Apple Watches, and other wearable personal activity “trackers” can be invaluable when evaluating and defending personal injury claims.

These devices offer attorneys and claim professionals a wide array of relevant and easy to use information. Mining these devices for key evidence will only become more commonplace as the popularity of trackers increases. It is important for litigators and claims handlers alike to be familiar with personal activity trackers, the data they create, and how to obtain and use that data to defend claims. Many people use trackers and apps, such as the MyFitnessPal app, to track their daily exercise, activities, sleep patterns, and eating habits. They can track a user’s motions 24/7 and provide receipts reflecting a person’s activity. These devices are essentially a human’s very own “black box”. For example, Fitbits track your heart rate, workout regiment, sleep, and diet. Many use GPS to track a person’s whereabouts or running routes. The data is uploaded and can be viewed on the device itself, a computer, or even shared with other users. The information collected by these mini-computers can be a gold mine for litigators when defending against causation and damages.

Consider a routine personal injury case where a plaintiff claims his injuries prevent him from engaging in numerous physical activities that he participated in before the accident. A personal activity tracker and evidence from health related apps can prove a particular plaintiff lived an inactive lifestyle before the incident or that he continued to live a normal life after the incident.

Here are some tips for uncovering and using evidence from personal activity trackers and apps in personal injury claims:

• Request this data be maintained in your initial preservation letter. Most letters request a claimant preserve any cell phone activity and social media posts which could lead to discoverable evidence. The same strategy applies to information from wearable devices.

• Review publicly available data, such as Facebook and Twitter. Wearable devices and fitness apps allow users to share their accomplishments and goals via social media. This review should be done immediately after a claim is received and before claimants are told to secure accounts by their attorneys.

• Send broad interrogatories aimed at uncovering whether a plaintiff uses such devices, apps, and websites. Similar to requests seeking social media account information, requests should ask for a plaintiff’s username, password, and the user’s consent for the data. Although a plaintiff may fight to prevent such discovery, there is an excellent argument to support a motion to compel in cases where a plaintiff is alleging diminished capacity and other claims related to a decrease in mobility and quality of life.

• If a plaintiff identifies certain devices or apps but refuses to produce data from same, request the data directly from the provider of the activity tracking service via the subpoena power. Fitbit, Garmin, and Nike manufacture wearable devices and can be subpoenaed for valuable information. Contact the entity prior to serving the subpoena to ensure your request conforms to any strict compliance requirements.

• Research the particular activity tracker or app at issue to ensure you are requesting the correct data created by the device. For example, not every device collects GPS data. Learn how each device works to save time and effort before drafting a subpoena.

• Repeat requests for personal activity tracker information in depositions. A plaintiff and his or her family members may identify trackers or apps not previously disclosed in written responses.