Although U.S. courts are typically slow to adopt technological innovations, there has been a recent push to allow the admission of wearable device data into evidence.1 Most prominently, it has been discussed in the context of personal injury litigation as a means to show notable changes in a plaintiff’s physical fitness or behavior after an injury. For instance, a plaintiff could support claims that their activity levels decreased after an injury by utilizing several months or even years’ worth of data compiled from an exercise tracker, such as a Fitbit or Jawbone or the much-anticipated Apple Watch.
Insurance companies may also seek to use this type of evidence in prosecuting fraudulent claims to determine if claimants are actually more active than they are claiming.2 Although an insurance company would be unable to force a claimant to wear an exercise tracker, it could bring a motion to compel the disclosure of such data.3
Under the Federal Rules of Evidence, evidence, like data from a wearable device, is considered relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence; and b) the fact is of consequence in determining the action.4 Thus, the evidence does not have to be undisputable; it just has to show the fact was more or less probable. Here, data from an exercise tracker that is used to show the fact that a plaintiff had material changes in activity levels after an injury, could have a tendency to make that fact more probable.
Once an attorney brings in this form of evidence, however, it can act as a double-edged sword—weighing against a defendant, as well as a plaintiff.5 The opposing counsel can cross-examine the figures presented, as well as seek its own wearable device data upon the admission of such evidence.6
Moreover, this type of data comes with some reliability issues. By way of example, devices that count steps based solely on arm movements may include steps that were not actually taken, such as fidgeting while watching TV shows. Such devices may also fail to count steps, for instance, when a person cycles on a stationary bike, neglects to change the battery, or forgets to wear the device at all.7 Further, there is the possibility that someone else could have been wearing the device.
Thus, an attorney planning on bringing forth data from a wearable device as evidence should assess whether the information gathered from the device is relevant, reliable and beneficial to their client’s claim.
Beyond the courtroom, there are other areas where wearable technology has crept into the U.S. legal system. For example, one California attorney has started to use Google glasses to record interviews and depositions.8 Using Google glasses for jury selection may be next.9 Here, non-local counsel or jury consultants would be able to weigh in during the proceedings, and save the hassle and expense of travel.
1 Christina Bonnington, Data From Our Wearables Is Now Courtroom Fodder, Wired (Dec. 12, 2014, 6:30 AM), http://www.wired.com/2014/12/wearables-in-court/.
2 Parmy Olson, Fitbit Data Now Being Used In The Courtroom, Forbes (Nov. 16, 2014, 4:10 PM), http://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-injury-claim/.
3 Id.
4 Fed. R. Evid. 401.
5 M.L., What Everyone is Wearing: Data from Wearable Devices is Being Eyed as Evidence in the Courtroom, 101(4) A.B.A. J. 12 (April 2015).
6 Id.
7 Id.
8 Drew Hendricks, Are Wearable Technology and Personal Injury Law on a Collision Course?, Inc. (Jan. 2, 2015), http://www.inc.com/drew-hendricks/are-wearable-technology-and-personal-injury-law-on-a-collision-course.html.
9 Id
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