When I first started writing about the importance of social media to lawyers in the mid-2000s, it was an uphill battle to convince lawyers that social media should matter to them. It wasn’t until social media began cropping up in cases a few years later, both as the medium for the commission of crimes and as evidence in courtrooms, that interest in social media suddenly increased. When this began to happen, it was a turning point. Lawyers were suddenly much more amenable to learning about social media and how they could use it to better represent their clients.
Interestingly enough, I’ve encountered a similar phenomenon when it comes to wearable technology. I first started writing about it a little over a year ago and most lawyers seemed to think it was simply a passing fad.
However in recent months, the tide has begun to turn. I first noticed this when I was speaking on a panel about wearable technology last month in San Francisco at Legaltech West Coast. Toward the end of our talk, an audience member raised the issue of requesting the plaintiff’s Fitbit data during the discovery phase of personal injury cases. For many in the room, it was as if a light bulb suddenly went off. Their eyes lit up and they began nodding their heads in unison. Suddenly they realized that perhaps wearables were relevant to lawyers after all.
A few other astute lawyers have already followed this same line of thinking. For example, in December 2014 it was reported in Forbes that a Calgary law firm used their client’s Fitbit data to show that her activity level had significantly decreased since the accident as a result of her injuries.
In another case reported by Engadget in June, police in Lancaster, Pennsylvania, used a rape complainant’s Fitbit data to refute claims of her assault. She alleged that she’d been asleep when an assailant broke into her home and attacked her, while her Fitbit data showed that she’d been awake and walking around for much of the evening. She was later changed with filing a false report.
These two cases involved only the health tracking data collected by Fitbit. Now that Apple Watch has been released, the types of evidence that can be collected from smartwatches have expanded tremendously. Apple Watches collect all sorts of information including geolocation data, payment information, health-related and activity data, phone call and text data, social media interactions and more.
Of course it’s the health-related information that typically distinguishes wearable data from that collected from smartphones alone — at least for now. But that data amassed as users wear their smartwatches while going about their daily activities can be invaluable and have all sorts of practical applications in a lawsuit.
That’s why the astute litigator would be wise to learn about the different kinds of wearables, the types of data collected, and the implications that can be drawn from the data. Because by understanding the technology — including its limitations and possibilities — you’re able to offer your clients the best possible representation.
Mark my words, like social media evidence, data gleaned from wearables will soon be the difference between a winning case and a losing case. Which side would you rather be on?
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at firstname.lastname@example.org