Posted on: August 03, 2015in Blog
eDiscovery Update: How many calories can you burn reading this article?
This article was originally published on The Daily Record.
Electronic evidence, like people, comes in all shapes and sizes. Some people, who like to monitor their shape and size, are using fitness tracking devices like Fitbit. Fitbit is a wearable fitness monitor that wirelessly connects to your phone and it can track steps taken, calories burned as well as monitor your quality of sleep.
If you are not impressed, how about this feature: it can also help to detect lies. No, it’s not a polygraph machine, but police in Pennsylvania concluded that the wearer of a Fitbit was lying after analyzing the data on the device.
In Lancaster, Pennsylvania, police responded to an emergency call by a woman who claimed she was sexually assaulted by an intruder. She stated that she awoke in bed to find her attacker on top of her. She informed police that she was wearing a Fitbit during the attack, but it was lost at some point.
Authorities were able to find her Fitbit and after analyzing the recorded data found that she was active, awake and walking around all night. The Fitbit information, combined with other missing evidence, such as the lack of tracks outside in the snow, led to her facing misdemeanor charges for reporting a false incident.
This is not the only incident where Fitbit and the courts have intersected. In 2014, a Canadian law firm wanted to use the data collected from Fitbit to prove that their client’s lifestyle and activity level had been impacted by an injury sustained over four years ago. This is the first personal injury case that I could find where Fitbit data was being used, but what makes it even more interesting is that Fitbit didn’t exist four years ago!
So how can lawyers use data from the device today to prove her fitness level has decreased in four years? It seems that the law firm’s client was a personal trainer so it is assumed she had a high level of activity. The plan included using the Fitbit to track the wearer’s activity for a number of months and then feeding that data through a data analytics platform that uses public research to compare a person’s activity data with that of the general population.
The attorney in the case stated: “We’re expecting the results to show that her activity level is less and compromised as a result of her injury.”
In my opinion, just like social media evidence, this is another potential wave of electronic evidence that attorneys will seek out. Local Rochester attorney Richard Tubiolo agrees.
“This is a natural evolution of technology and evidence. It sounds similar to the familiar day-in-the-life videos and social media sites and while there may be reluctance to use this type of evidence in the beginning, as the reliability of the information is developed by trial judges and the Appellate Division, it may become mainstream.”
He then added, “I would want to see the raw data to ensure all objections as to the admissibility have been completely addressed and not rely solely on opposing counsel’s interpretation of the evidence.”
I agree wholeheartedly with that last statement and when confronted with any evidence from an unknown (or not well-understood) technology source then do some research. Don’t be steamrolled by an opposing expert and accept unaudited findings. This not only goes for fitness trackers, but all electronic evidence.
But how much can one really glean from a wearable or fitness tracker?
I received an iWatch as a gift for Father’s Day and besides being a pretty cool gadget I immediately noticed its evidentiary value. Not so much e-discovery, but evidence of which days I went to the gym.
For starters, I was actively tracking my workouts to see how many calories I burned, but beyond that, the watch displays graphs that chart spikes or dips in activity during the times the watch was worn. Anyone looking at the graphs would quickly come to the conclusion that I was indeed active. The watch has a corresponding application on the iPhone that stores additional information about my activity as well as other settings.
I also use the watch to pay for my coffee at Starbucks, check the weather (which uses GPS) and I have used a nifty golf app that shows yardage (this has yet to improve my game). That’s a lot of potential evidence that can be used for myriad purposes.
I can certainly see how a personal injury attorney or insurance investigator may find this, along with other supporting evidence, beneficial in a case, “Mr. Coons, why do you have a golf app on your watch/phone when you claim that due to your injury you can no longer play?”
As mentioned earlier, this is simply part of the natural evolution of evidence. Attorneys and investigators will continue to seek out and find innovative ways to use electronic data to support the claims and defenses of a case. I also believe the hurdles will continue to shrink with regards to courts accepting this type of evidence in both civil and criminal cases. It didn’t take long for social media ESI to become a familiar form of evidence and data found on wearables will likely be no different.
By the way, according to my iWatch I burned 22 calories while writing this article.
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