The FitBit


A few years ago there was much discussion about the use of social media evidence in lawsuits.  The use continues and ranges from criminal prosecutions through non-compete disputes.  It’s amazing what will people will put in the public domain and gives social media can provide strong, sometimes permanent, information about whereabouts, communications, and even the physical condition of someone.  The use of this type of evidence continues and our courts continue to adapt to it.

Over the last couple of years we have also seen the rise activity trackers like Fitbits.  The technology allows folks to track how many steps they take in the day, whether they’re standing or sitting, heart rates, and even sleeping patterns.  Some companies even provide these types of devices as part of wellness programs and reward employees if they reach certain levels of activity.   The new Apple watch will have all of these activities built in as well as other workout information and feed it into a user’s iphone.

Recently, there was some press about a personal injury plaintiff using Fitbit evidence to compare the physical activity of the injured plaintiff with an uninjured person.  That could be pretty poweful evidence when a plaintiff could compare their “raw data” to that of someone who had not been injured.  Typically, Plaintiff’s are left with their own testimony and maybe some video or other evidence of what their day to day life is like.  The Fitbit data could actually bring somewhat objective data to the jury.  Of course a defendant could use the same data to disprove or minimize an injury.

The Apple Watch

Regardless of what party uses the evidence there is going to be more and more of it.  Apple’s latest device, its watch, will feature many of the data points offered by a Fitibit that will then route through a user’s Iphone or other Apple device.  The watch actually includes a heart rate monitor.  Just think of the data an Apple product user generates.  This could include: (1) communication data like email, text messages, or even information about phone calls; (2) location data from the Iphone; and (3) health/activity data as discussed above.

All of this information serves to recreate days and time periods at many different levels.  In non-compete disputes we can recreate what a defendant did in setting up a compeiting business or soliciting customers.  In a car wreck case we can recreate the events leading up to accident at the intersection.  The challenge for lawyers will be (1) knowing what data is out there; and (2) getting it through the discovery process.  Get ready for the discovery requests designed to obtain Fitbit data – it’s going to happen.

Have a Happy Thanksgiving.