Jay Evans and Vikram Subramanian of Schnader Harrison Segal & Lewis

Wearable technology and smartphones are ubiquitous—as is the potentially useful data they collect.

At least one in six American consumers own and use wearable technology—watches and fitness monitors that allow the compilation and exchange of data without the user's involvement—based on a 2016 study cited in Forbes. The Pew Research Center recently reported that around 250 million people in the United States, 77 percent of the population, own and use a smartphone. Most smartphones come with a variety of health-related applications that measure and provide statistics. Data from these devices often include movement or steps taken by the user on any given day and other health-related metrics such as diet and respiration. With millions of these devices in use throughout the nation, the data they collect could be highly relevant evidence in personal injury cases.

Activity and personal health tracking data, used as part of a dispositive motion or a trial, could potentially be catastrophic to a plaintiff's case. Someone alleging serious injury, like damage to a back or a knee or other limitations on activity, whose movement statistics reflect multiple miles walked or thousands of steps a day, could face significant questions (or a dismissal). Likewise, a plaintiff claiming serious injury may offer such data as corroboration of their claim.

Discoverable? Admissible? Concealed? Destroyed?

Given the volume of data collected by wearables and smartphones, important litigation questions include whether that data is discoverable, represents an “initial required disclosure” under the Federal Rules of Civil Procedure, or is admissible at trial.

Gaining access to activity-tracking data, as well as other personal “health” information, such as heart rate, sleep and biometrics, might provide valuable information regarding a personal injury claim. Gathering those materials may not be as simple as a discovery request—defense attorneys must also be wary of savvy users who know how to delete such data in preparation for litigation without leaving back-up materials in the cloud or elsewhere. This may require the expensive and time-consuming process of retaining a technology expert and obtaining a discovery order to determine the extent of any spoliation. Defense counsel must also be ready to litigate motions for a protective order filed by a plaintiff based on relevance, privacy, and other concerns.

Federal Rules Considerations

Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires that a party produce with its initial disclosures “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” If a plaintiff alleges that her activity is limited because of pain or disability, the existence of stored data on a wearable device or smartphone should be the subject of discovery, whether or not it qualifies as a mandatory initial disclosure “supporting” her claims— perhaps even more so if it refutes her claims. A defendant should not make any assumptions based on the absence of this data in an initial disclosure, and should consider discovery requests to reveal the existence of all such past and current devices and data, as well as the revelation of past and present user accounts associated with them. When possible, a defendant should seek this information well in advance of a deposition of the plaintiff to maximize its utility in questioning.

Whether or not activity-tracking data is classified as covered by mandatory initial disclosures under F.R.C.P. 26(a), the plaintiff and her counsel, for purposes—both good and bad—may still attempt to object to, withhold, or conceal this evidence. A party who does not understand the obligation to preserve evidence might delete the account or destroy the data. Thus, defense counsel should serve targeted written discovery and include lines of questioning in their depositions to address these possibilities and ascertain whether a party has ever had possession of a smartphone or wearable technology that tracked their activity.

Under F.R.C.P. 34(a)(1)(A), a party may serve a request for “any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” A tailored production request can and should capture activity tracking data and the circumstances of use of the wearable/smartphone and the tracking applications. A F.R.C.P. 30 deposition can then be bolstered by such data, or the deposition can be used as a tool to determine whether the activity tracking data exists, if discovery requests are unserved, answered evasively, or if answers are still pending.

Recourse

If defense counsel still meets resistance at this point from the plaintiff and their counsel, or believes such evidence has been concealed or destroyed, what then is the recourse? At this juncture, defense counsel will usually resort to a motion to compel seeking disclosure of a plaintiff's activity tracking data pursuant to F.R.C.P. 37(a)(1). Under Rule 37, this motion is warranted when a party fails to make a required initial disclosure, fails to respond to a discovery request, or when the party provides an evasive response. Importantly, Rule 37(a)(1)(iv) specifically allows for a motion when a party fails to produce documents or allow for inspection under Rule 34. Continued resistance may also result in sanctions.

How the court decides a motion to compel may very well be impacted by issues of relevance, authenticity, and reliability:

• Relevance will depend on the facts of each case, and would be especially significant in the context of a personal injury case alleging physical limitations as part of a claim.
• Although authenticity would hopefully be the subject of a stipulation among counsel, it could necessitate the use of forensics experts.
• Reliability will be more complicated. Those seeking to use such data must address how the wearable/smartphone tracks activity, and how it distinguishes between actual activity rather than simply movement (driving a vehicle or riding the subway). Identity of the user of the device is also a concern, particularly with wearables (shared devices or allowing friends to borrow them). To persuade the court, defense counsel will need to refer back to their written discovery and deposition testimony or engage a forensics expert.

An Evolving Answer to a Complicated Question

Ultimately, spoliation, reliability and admissibility of such activity-tracking data may require forensic and technology experts, and trigger extensive motion practice on both sides. Counsel must focus on reducing the expense and time of such efforts by structuring their discovery plan to target this activity-tracking data. Such efforts could be worthwhile regardless of the final outcome—contrary data could bar claims or reduce their value, and supporting data will allow a measured assessment of the claim and perhaps facilitate a fair resolution. In any case, activity-tracking data should be considered whenever appropriate and feasible.

Unquestionably, the reliability of data from wearable devices has generated and will continue to generate a storm of arguments, but the accuracy and detail of information appears to be in a mode of constant improvement, without an end in sight, as reported by international research organizations and journals. A variety of courts have addressed preliminary issues in pending cases, without much binding precedent at this point. See, e.g., Hinostroza v. Denny's, No. 2:17–cv–02561 (D. Nevada, June 29, 2018). In addition, the Recorder recently reported that a consumer lawsuit was filed challenging the legitimacy of warranty claims regarding device accuracy, and device manufacturers often include warranty and disclaimer language which might refute any claim of accuracy. For example, “We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the [SERVICE AND CONTENT].” The optimal solution may be to provide all of this information to an expert, who can consider reliability issues along with the data available, and factor that in to any opinions that are developed.

Vikram Subramanian is an associate with Schnader Harrison Segal & Lewis in the firm's litigation services department. He has a wide range of experience in business, real estate, employment, torts, intellectual property and commercial litigation. Contact him at [email protected].

Jay Evans, a partner at the firm, serves as counsel for clients, particularly automotive, truck and heavy equipment companies, facing significant litigation matters in the realm of products liability and toxic torts. He also assists companies and individuals in internal investigations and analysis to prepare for or avoid civil or criminal matters, including restrictive covenant and trade secret concerns. Contact him at [email protected].