Your Next Discovery Request: Defendant’s FitBit Data

Smartphones are a treasure trove of information for police and other law enforcement agencies. Thus, the huge push back on police spying and other evidence tactics. But now, lawyers might have another area of concern when they’re meeting with clients.

fitbit

Apparently, some lawyers are collecting data from fitness trackers and processing the analytical information for trends and comparison. Lawyers at the McLeod law firm in Calgary are using FitBit data to show that their personal injury client’s activity levels are now under a baseline for someone of her age and profession.

That’s an interesting concept and approach for proving damages, especially in minor impact, minor injury (soft tissue) cases.

I’ve already predicted the impact of wearables and smartphones on litigation, and this is just another example that both sides need to be aware of. An especially important consideration is the client or opponent’s use devices with GPS tracking enabled. A lot of the new Android Wear devices carry GPS radio chips, which track a client’s location.

And this information should be discoverable, just like social media information, when requested from the opposing party. If the opposing party (or your client) uses Google, they’re already being tracked. Google Fit and other fitness tracking apps include GPS location information, as well. If I was trying to prove (or disprove) the speed at the time of impact, I’d certainly request the location data for the opposing party and my client.

I’m curious how many attorneys request social media information for their clients and opposing parties. And I’m even more curious if you’ll request location data in future cases. Here are a couple of my social media discovery requests:

Produce copies of your Facebook account, Twitter account, MySpace page, YouTube page, or any other social networking site, from [date of request] to present. Note: although most social networking sites allow you to download copies of your posts and timelines for free (see https://www.facebook.com/help/131112897028467 or https://support.twitter.com/articles/20170160-downloading-your-twitter-archive for example), Plaintiff’s counsel will reimburse the cost of reproduction of photos within reason. If the expense will exceed $100, please call plaintiff’s counsel with an estimate before proceeding. Pursuant to [our state or federal court’s discovery rule], it is not a ground for objection that the information sought we be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The burden is on the defendant to show that the request is not reasonably accessible because of the undue burden or cost.

Given the new power of wearable devices, I’d add the following:

Produce the location data for your smartphone or other wearable device, including FitBit, Android Wear, Apple iWatch, or other similar device, from [date of data] to present. Note: you can view and download your phone or device’s location history by visiting https://maps.google.com/locationhistory/b/0 (for Android or devices with Google accounts) or by visiting Privacy>Location Services>System Services>Frequent Locations on Apple devices and taking screen shots of the locations.

Apple’s data isn’t as exact as Google’s location settings, but there’s plenty of information available.

One Response to Your Next Discovery Request: Defendant’s FitBit Data

  1. Don’t forget data from Strava, Garmin Connect and the other athletic tracking sites. These sites are used like online workout journals, tracking all sorts of data about a workout, including heart rate, speed and a map of the route of the runner or cyclist. Most “age group athletes” are pretty obsessive about tracking their workouts, and this data could show an abrupt stop in activity (or a lack thereof)

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Jeff Taylor

I’m just an ordinary guy living an extraordinary life. I’m also an attorney and I blog about Android for lawyers. You can follow me on Twitter, LinkedIn, YouTube, or Google+.