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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