It should come as no surprise that wearable technology and fitness trackers, such as Google Glass, the Jawbone UP, and the Narrative Clip are saturating the consumer market, and as a result, consumers are increasingly interested in the exciting features these devices offer. From photos on the go to health and lifestyle tracking, these little devices perform some pretty major functions. These functions, in turn, generate data that is recoverable in litigation, raising the question of what implications exist relative to wearables in the context of litigation.
Depending on the particular wearable, the resulting data may be quite helpful, or hurtful, depending on which side of the courtroom you happen to sit. Wearables have the ability, among other things, to track an individual’s heart rate, workout regimens, as well as take photos and videos, and run searches on the web. Additionally, most wearables mine geolocation data, such as running routes or the location where a photo was taken.
Privacy considerations aside—and there are many—wearables are yet another example of how technology may be a gold mine of potentially relevant ESI for use in litigation. Take, for example, a personal injury case where a plaintiff is claiming the injuries he sustained in an automobile accident prevent him from participating in physical activities, such as running. Suppose further that the plaintiff has worn a fitness tracking device which has been recording every one of his five-mile runs during the past three months. The data generated by the plaintiff’s wearable device may be discovered in litigation and, as a result, completely discredit plaintiff’s case for damages resulting from the accident.
Since wearables may contain potentially relevant ESI, possessing the know-how for obtaining the ESI is important. The data generated from wearables may be stored locally, but most of the data is likely stored in the cloud or sent to an app for that wearable on your smartphone. Retrieving the relevant ESI, whether stored locally, in the cloud, or on a smartphone, should be done by a method that is cost-effective and defensible. An in-house ESI collection team well-versed in performing collections of this nature is an option for some practitioners. For others, it is advisable to utilize the services of a third-party vendor with experience and expertise in these collections.
Although the law does not always keep pace with technology, wearables generate data and it is only a matter of time before the use of that data is commonplace in litigation.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all ESI-related issues in the firm’s cases. She also presents MCLE programs relating to eDiscovery. For more information, please visit mcmanislaw.com.