Articles

A ‘Black Box’ for the Human Body

Michael W. Rabb | South Carolina Young Lawyer Magazine

Civil Discovery of Wearable Technology Data in Personal Injury Cases

On September 13, 2018, in Santa Clara County, California, a 67-year-old woman was discovered dead in her home, slouched in a dining room chair with lacerations on her head and neck, clutching a large knife.

Two weeks later, her stepfather was arrested for her murder based in part on evidence obtained from a silent observer—her Fitbit. The fitness tracker she was wearing at the time recorded a spike in her heart rate followed by a slow decline in her heart rate until it completely stopped, all during a time when her stepfather—the last person to see her alive—admitted he was at her home.¹

The advent of wearable technology, expected to become a $27 billion dollar market by 2022², has brought forth the expansion of “smart watches” from simple step counters to complex computers strapped to our limbs. These devices allow us to measure fitness data from calories burned to V02 Max, communicate with our peers through telephone calls and text messages, check the local news and weather, scan through social media, and even play music—all from our wrists.³ Inevitably, these devices and their recorded data have also found their way into the courtroom. Lawyers have sought to use wearable technology data not only to help solve crimes, but to also bolster their clients’ cases in civil lawsuits as well. This article will discuss the details of engaging in discovery of this wearable technology data in civil personal injury lawsuits.

Initially, a lawyer should make a determination as to whether wearable technology is or was in use by the opposing party. This can be as simple as conducting a preliminary background check of the opposing party through social media. However, the safest approach is likely to send correspondence to opposing counsel at the beginning

of the suit seeking preservation of any wearable technology data, regardless of whether counsel has confirmed the opposing party was using or still uses a wearable device.⁴

The next step should be sending written discovery requests seeking detailed information on any wearable devices used or in use as well as the production of data from those devices.⁵ The interrogatory and/or request for production requesting this information needs to be carefully constructed. A circuit court in Oregon recently granted a defendant’s motion to compel discovery of the plaintiff’s wearable technology information. The request in that case was drafted to require the production of “[a]ll documents, records, data, or information reflecting plaintiff’s personal fitness, diet, or other lifestyle management. This includes, but is not limited to, data and information from hardware (including wearable technology), software, or personal computing/telecommunication e-applications, e-logs, and e-diaries.”⁶

To avoid objection, a successful request for wearable technology information should be narrowly tailored both in time and scope, should specify the intended use of the information, and should specify the medium in which the information or data is to be produced.⁷ An especially detail-oriented lawyer might also request data from a wearable device that had been submitted to a plaintiff or defendant’s employer for a health insurance wellness program, as a possible “back door” to obtain information previously deleted by the individual who wore the device.⁸ Although the admission of this data into evidence exceeds the megabytes of this article, the medium in which the data is produced is crucial for ensuring the data appears in a readable format to pass initial admissibility hurdles.⁹

As soon as the attorney identifies the wearable device company, a “litigation hold” letter should be sent to the company to maintain the information in their database.¹⁰ Additionally, the attorney should carefully review the company’s privacy policies—in the event a subpoena is required for the information—to determine where device data is stored and what types of data the company will allow to be shared or released.¹¹ If the information cannot be obtained by the party possessing the wearable device, a subpoena will be necessary to obtain the information from the wearable device company. Of note, Apple Inc.’s privacy guidelines apply to all of its devices, making it crucial for the practitioner exercising subpoena power to carefully tailor his or her request to obtain only the most relevant information.¹²

Additional considerations for attorneys engaging in discovery of wearable technology data include the Health Insurance Portability and Accountability Act (HIPAA), the Electronic Communications Privacy Act of 1986 (ECPA), and Rules 26(a)(1) and 34 of the Federal Rules of Civil Procedure. HIPAA imposes certain requirements on “covered entities” that possess, use, and transfer private health information.¹³ Wearable technology companies are not considered “covered entities” under HIPAA because they do not provide health care, pay for health care,  and cannot be considered health plans or health care providers.¹⁴ Therefore, a HIPAA authorization is not necessary to include in a subpoena for wearable technology data.¹⁵ Furthermore, companies are allowed to produce customer records under the ECPA as long as the records are not deemed communications.¹⁶ Wearable technology data likely does not constitute a communication under this Act as there is no intent to convey information.¹⁷ Therefore, this data is properly classified as a customer record available for production under the ECPA. Data from wearable devices may be an “initial required disclosure” under Federal Rule of Civil Procedure 26(a)(1). Moreover, the data certainly can be considered electronically stored information under Federal Rule of Civil Procedure 34, subjecting it to the requirements of this rule. Lawyers should be in sync with the requirements of these rules and prepared to adhere to their requirements when seeking discovery of wearable technology in federal court.

As the use of smart watches and fitness trackers continues to become more popular, clever litigators will continue to find creative ways to use the data from these devices to make  or break a plaintiff’s personal injury claims. Practitioners must grasp the strategic value of this data and adapt their discovery techniques accordingly if they want to take full advantage of this “black box” of the human body.

Michael Rabb is an associate in the Greenville, South Carolina, office. His practice focuses on all aspects of civil litigation, including medical malpractice defense, products liability, premises liability, insurance law, commercial litigation and general negligence.

Endnotes

_{¹ Christine Hauser, Police Use Fitbit Data to Charge 90-Year-Old Man in Stepdaughter’s Killing, The New York Times, Oct. 3, 2018.
² Paul Lamkin, Smart Wearables Market to Double by 2022: $27 Billion Industry Forecast, Forbes, Oct. 23, 2018.
³ Nick Statt, The Rise and Fall of Fitness Trackers, CNET, Jan. 1, 2015.
⁴ Laura P. Paton, Sarah E. Wetmore & Clinton T. Magill, How Wearable Fitness Devices Could Impact Personal Injury Litigation in South Carolina, 27 S.C. LAW. 44, 48 (2016).
⁵ Paton, Wetmore, & Magill, supra note 4.
⁶ Concienne v. Asante, No. 123280L3, 2016 WL 5673003 (Or.Cir., Trial Order, May 25, 2016).
⁷ Spoljaric, Jr. v. Savarese, No. 608838-2017, 2020 WL 611911 (Supreme Court, Suffolk County, New York,  January 28, 2020).
⁸ Clint Cowan, Jr., Wearable Technology Discovery in Personal Injury Cases: How Data From a Plaintiff’s Wrist Can Make a Difference In The Courtroom, Feb. 19, 2017.
⁹ Mikolinski v. Phuoc Nyugen, No. CV176010111S, 2019 WL 5431400 (Superior Court of Connecticut, Judicial District of New Haven at Meriden, October 9, 2019).
¹⁰ Paton, Wetmore, & Magill, supra note 4; Cowan Jr., supra note 8.
¹¹ Paton, Wetmore, & Magill, supra note 4; Cowan Jr., supra note 8.
¹² Meghan A. Rigney, “Steps” For Discovery: Subpoenaing Wearable Technology Data, American Bar Association, May 14, 2019.
¹³ Paton, Wetmore, & Magill, supra note 4.
¹⁴ Paton, Wetmore, & Magill, supra note 4.
¹⁵ Rigney, supra note 12.
¹⁶ Cowan Jr., supra note 8.
¹⁷ Cowan Jr., supra note 8.}