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Wearables: e-discovery’s new frontier?

Attorneys are long accustomed to mining email for evidence. And recordings, text messages and location data from cellphones have increasingly played an important role in both criminal and civil trials.

But now lawyers have to consider whether the smartwatches on their clients’ wrists might at this very moment be collecting information that could wind up in court.

A new era of e-discovery was marked by a recent article in Forbes Magazine about a personal injury case in Canada. The plaintiff’s lawyers planned to use physical activity data from their client’s Fitbit tracker to show at trial how her lifestyle had been severely impacted by her injuries.

According to Forbes, it was the first known case in which data from so-called “wearables” was used in court.

The proliferation of wearable devices such as Fitbit wrist bands and smartwatches promises to be a rich source of evidence for attorneys across a broad spectrum of practice areas.

“There’s more electronic data out there that people are going to try to access, and lawyers are going to fight about whether it should be admissible,” says Kevin P. DeMello, a civil litigator at Houser & Allison in Boston.

Personal injury attorney Vincent L. Greene of Motley Rice in Providence, Rhode Island, likewise sees the potential for evidence obtained from wearable devices.

“Five years from now, it will be commonplace for lawyers to be asking questions about what kind of data do you have running on your Apple watch,” says Greene, president of the Rhode Island Association for Justice.

He predicts that the discoverability and admissibility of data gathered by smartwatches and other wearables often will depend on the court and who’s applying the rules of evidence.

DeMello also thinks the standard will be somewhat subjective.

“The standard that we’ve been using in this area of privacy versus electronic devices, what’s available for discovery and what’s not, is whether you have a reasonable expectation of privacy,” DeMello says. “That’s balanced against the probative value of the data and how prejudicial it is to the person you’re getting it from.”

Greene rejects the notion that a personal injury plaintiff, by bringing suit, waives his right to privacy regarding health and physical activity data that may be recorded by a wearable device.

“Just because a plaintiff is placing their physical condition into controversy doesn’t mean you get to invade every aspect of their life,” he says.

Fall River workers’ compensation attorney Deborah G. Kohl agrees.

“You have a privacy expectation with respect to your personal devices,” says Kohl, who chairs the Massachusetts Bar Association’s Workers’ Compensation Section.

Because of privacy issues, Kohl thinks it would be hard for an employer or insurer to gain access to data collected by a wearable device owned by the employee, but the same might not be true for a device supplied by the employer as a condition of employment.

“If the employer owns it, you may have lost your privacy rights,” Kohl says. “If you bought it, I don’t think they can get to it.”

Kohl notes that some employers, such as UPS, have already equipped their employees with tracking devices.

“They not only GPS these folks, but they can also tell how many steps it takes to get from one place to another,” she says.

In the workers’ comp context, Kohl foresees that wearable devices with a GPS function will be most useful in verifying or discrediting an employee’s claim that his injury occurred on the job.

A good indication of where the technology is heading is a new app called Alibi recently unveiled by Android. A device running Alibi discreetly records location data, audio and photographs of a user’s surroundings in a continuous one-hour loop, which is saved to the user’s local storage only when the user elects to do so.

Billed as “a witness for every moment,” the developers promise the app will “provide evidence of any situation from police interactions, vehicle accidents, altercations, arguments, workplace harassment, and much more.”

Criminal defense attorney Peter T. Elikann of Charlestown, Massachusetts, says that police likely would need to get a search warrant in order to access data recorded by a suspect’s wearable device.

“It’s clearly a Fourth Amendment search, and yet the issue is always going to boil down to whether it’s an unreasonable search,” says Elikann, vice chairman of the MBA’s Criminal Justice Section.

Evidence from wearable devices with a GPS function could cut both ways, Elikann notes, citing his experience with the GPS monitoring of defendants and probationers. In one recent case, he saw a client exonerated when a GPS device showed he never came near the home of a woman who complained he was harassing her.

On the other hand, another of Elikann’s clients was charged with murder when a GPS monitor appeared to place him at the scene of a homicide at the exact time it occurred.