Activity data from a fitness tracker will be used as evidence in a personal injury lawsuit for the first time

A Canadian law firm will use data from a Fitbit fitness tracker for the first time in court as an objective measure of activity.



The data will be provided by the plaintiff in a personal injury lawsuit in an effort to show life-affecting reduced activity post injury. But the case has implications for fitness trackers and smartwatches, including Motorola’s Moto 360 and Apple’s upcoming Apple Watch that can track movement.

The information for the case will be willingly provided by the plaintiff and processed by data company Vivametrica, which collects data from wearables and compares it with the activity and health of the general population. The plaintiff’s lawyers will use the data in an attempt to prove the accident’s detrimental affects.

“Till now we’ve always had to rely on clinical interpretation,” Simon Muller of McLeod Law firm in Calgary told Forbes. “Now we’re looking at longer periods of time though the course of a day, and we have hard data.”

The implications of wearables and the law

The case opens up the possibility that fitness trackers and other wearable computing devices could be used in future cases with a grander scope. Though the data is willingly being turned over by the plaintiff in this case, data from wearables could be subpoenaed by courts as evidence in more serious cases.

“From photos on the go-to health and lifestyle tracking, these little devices perform some pretty major functions,” wrote Neda Shakoori, civil litigation lawyer with law firm McManis Faulkner. “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.”

The development could see insurance companies, for example, insisting that claimants undergo assessment via fitness tracker. Some have already started looking at fitness trackers as a way of measuring relative fitness of subscribers. Corporate wellness plans have seen employees given fitness trackers as part of company encouragement to boost activity, as well as potentially reducing company insurance premiums.

‘Only a matter of time before data from wearables is commonplace in litigation’

Beyond simple activity, fitness trackers are capable of measuring sleep and other biological data. In 2015 they are set to become more sophisticated with devices capable of measuring heart rate and detailed information about sleep patterns going on sale. Smart clothing with advanced sensors is also expected to take off by 2016, according to data from Gartner, providing another avenue for data collection.

“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,” said Shakoori. “Additionally, most wearables mine geolocation data, such as running routes or the location where a photo was taken.”

The privacy of data from wearable devices has already been identified by regulators as an issue, including the US Federal Trade Commission. However, where data is stored about an individual, traditionally in the cloud as well as locally in dedicated smartphone apps, poses questions around access by law enforcement or courts and how rigorously companies defend individual’s data privacy rights.

“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,” said Shakoori.

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