Chain of Custody and Authentication
Counsel should be prepared for challenges to admissibility and authenticity. As with any electronic evidence, data from wearable devices must be legitimate, accurate and related to the issue in question before it qualifies as evidence appropriate for use at trial. Proving authenticity and reliability may be difficult. Information from wearable technology could be susceptible to false readings or even fraud. Different devices record data differently. For example, one type of device might record someone as having taken 5100 steps in a day, while another might record only 2200. There have been lawsuits filed by Fitbit customers alleging that certain models did not give accurate heart rate readings.
Another obvious problem with data from wearable devices is that "self-quantification" lacks rigorous controls. Thus, these devices are not infallible sources of information. As with similar evidence, data from these devices will need a foundation showing that it is what you purport it to be, before it will be admitted into evidence. Then, it will be subject to cross-examination based on many potential criticisms, including accuracy.
Ethical Issues And Limits of Privacy
Data being collected and stored by individuals on their wearable devices can be unquestionably very personal in nature. But do those who choose to track this data have a reasonable expectation of privacy that could defeat discovery requests a motion to quash a subpoena? Arguably, the use of wearable technology by an individual to track his or her activity is analogous to keeping a diary. Just because it is personal and private does not shield from discovery.
Currently, there is no federal law that prevents health information gathered by wearable devices from being shared with third parties. Some health "apps" routinely share information, such as a user's blood glucose levels, with marketing companies, data aggregators and other websites out of the control of the individual user. Although some applications have privacy policies advising users how information will be shared, most users probably do not review these policies or appreciate their significance. If a wearable device user's information is already being disseminated to third parties, the user's contention that he or she expected privacy is likely to fail.
As more people are using wearable devices to track their personal data, the sources of information that can be gathered both prior to and during the course of litigation and, ultimately use at trial, is increasing exponentially. Attorneys and claims professionals should be thinking about the wide range of sources of information that may be available (including non-wearable devices) and the ways in which this information can impact a case. Although the goal of these self-tracking devices is to increase the user's health and well-being, this technology is also creating a trail of information that can truly provide an evidentiary goldmine to those savvy enough to know where to look.
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