Discovery and Preservation of Wearable Tech Data as Evidence
Now that you know what kinds of information may be available, how do you acquire it? Your approach will depend on claim, the issues and the procedural setting. If no lawsuit has been filed, you can incorporate questions about data residing on wearable devices into your investigation. Once litigation has been initiated, discovery requests can be made early on to determine whether the claimant used any wearable or other device and for what purpose, followed by specific requests for such data.
Federal and state rules allow for the discovery of "any ... electronically stored information - including ... images and other data or data compilations - stored in any medium from which information can be obtained either directly, or if necessary, by the responding party into a reasonable usable form."
One alternative is to make a request to permit entry onto land or other property possessed or controlled by the responding party, so that the requesting party "may inspect ... or sample the property or any designated object or operation on it." These rules arguably allow for the inspection of any wearable technology used by a claimant to collect data that may be relevant to the issues in dispute. Obtaining this type of evidence should be no different than gathering other electronic discovery, such as e-mail, and the same procedures should apply.
Although the sheer variety and volume of data available from different types of devices may seem overwhelming, there are companies that specialize in assisting lawyers and claims professionals in accessing, sorting and analyzing electronic data. The most important first step is to determine what devices may exist and contain data that might be helpful to your case. Then, notify the claimant or opposing counsel of your intent to seek discovery of that data with clear instructions not to delete or alter the information. By putting your opponent on notice, you have preserved your right to discover the information and the other party can be sanctioned for spoliation of evidence should that data be "lost" or destroyed.
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Sterling Peaks Insurance
1048 Independent Ave Suite A205
Grand Junction, CO 81505
A New Evidence Goldmine
Most insurance claim professionals are already mining social media for clues regarding claimants. This next generation of electronic media investigation taps into other sources of information. GPS devices and cellphones can disclose where a person has been and who he or she may have been talking or texting with at any given time. Photos on cell phones and other storage devices are an often overlooked category of potential evidence.
There are a growing number of sources of data that can supply highly relevant information about a claim. These now include devices that allow people to control their home environments, sometimes with video surveillance. Thanks to the "Internet of Things," which refers to the ability of everyday objects such as thermostats, toothbrushes and umbrellas, to connect to the internet and exchange data, technology is now crossing into all aspects of our lives.
Its is easy to imagine how information from these devices could be useful in a litigation context. In a personal injury case, data could be used to show how well a person was before an accident and how his or her activity levels have changed since the person became injured. For example, a plaintiff's lawyer in Alberta, Canada, introduced a plaintiff's Fitbit history in a personal injury claim to show that her activity levels are now lower than baseline for someone of her age and profession. Conversely, from a defense perspective, this information could show that a plaintiff is functioning quite well after an accident and performing the very activities he claims he can no longer perform.
There are now highly specialized mental health apps that ask users to record their emotional state, along with other factors such as alcohol consumption, sleep quality and exercise. This can help users analyze how their mood varies throughout a given time period. Typically, emotional distress claims are evaluated by obtaining medical records or relying on plaintiff to self-report. However, individuals may be more likely to be honest with their self-tracking devices than with their physician or on an insurance claim form.
For this reason, hard data showing patterns of insomnia, high blood pressure or other physical symptoms of stress can help in supporting or refuting quality of life and emotional distress claims. There is even an alcohol consumption app that allows people to track how much alcohol they drink and the effect on their coordination, reaction times of memory.
The value in the information from wearable devices, much like a photo or video, is that it can be a powerfully persuasive piece of evidence. It has the appearance of objective truth and can corroborate or refute a claimant's subjective contention: It is "data," which has been contemporaneously recorded verbatim. But even better, it was gathered and recorded by the claimant, who will have trouble denying its validity.
Use of wearable devices is not limited to individuals. Some companies and organizations, including professional sports teams, have invested in devices to encourage employees and athletes to be more healthy and productive by monitoring their actual performance. What can this information be used for and by whom? What happens if a player gets traded? Can company information be obtained by third parties in, for example, an auto accident case? The next generation of electronic data raises many legal and ethical questions.
For the purpose of investigating claims, lawyers and claims professionals need to be aware that this goldmine of evidence exists and is simply waiting to be discovered. In the right case, data from wearable devices can have a game-changing impact at trial.
Thank you for reading and look for the other two parts of this subject:
Sterling Peaks Insurance
1048 Independent Ave Suite A 205
Grand Junction, CO 81505
SPI Reflections Blog
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