A New Role For « Wearables »

22 septembre 2016 | Cynthia P. Carels

( Disponible en anglais seulement )

Guest Author: Danielle Bouchard, 1L Summer Student

With “fit as the new skinny” and apps for documenting every aspect of our lives, it is no surprise that personal fitness devices have become a booming industry for tech developers. Affectionately referred to as “wearables,” these bands and mobile apps purport to help individuals regain control of their fitness and ultimately their health. Most of these devices operate by tracking an individual’s steps, heart rate, and/or calorie intake, and consolidating this data into one manageable system. Although these proposed benefits are well known, personal tracking may not be the only use for these devices.

The Criminal bar has seen a surge of smart technology being integrated into the court room. Primarily used as supporting evidence, the data from smart devices is now commonly relied upon to support or refute testimony, pinpoint the location of suspects, or even support claims of premeditation. Now, after witnessing these developments, it appears that Personal Injury cases are following suit.

Whispers of this alternative use for physical fitness devices started to emerge when counsel for a Plaintiff revealed they would be using data collected from their client’s wearable to demonstrate how her physical capacity had changed. While one would assume the comparison should have been conducted against the client’s own fitness history, counsel in this case was limited to statistics for those of the same demographic and profession. This is because, before the time of her accident, wearables were not widely available.

These circumstances demonstrate possible approaches to the use of this technology in future litigation. Given the prominence of these devices, comparisons against the Plaintiff’s own pre-accident data will likely become quite common. However, the application of these technologies is broadening quickly, and their impact on litigation will not be limited to only those who owned fitness devices prior to their accident.

Even those who do not think they specifically own a “wearable” might be surprised by the technology that tracks their movements. At a recent Questioning in our own office, defence counsel asked about the health and activity data on a client’s iPhone. Upon further investigation, a number of us within our own office discovered our iPhones had been tracking data and recording it in the form of steps, flights of stairs climbed, and walking/running distances, even though none of recalled setting up that feature.

There are still significant evidentiary problems with this data. As anyone who has knowingly used these devices, the accuracy of wearables is limited and can, in fact, be manipulated by something as simple as switching the band to your dominant hand. Similarly, with little to no identification requirements, there is no guarantee the data is actually being generated by the Plaintiff, and hasn’t, at any point in time, been worn by someone else (or for that matter, that the Plaintiff has even consistently worn it).

Furthermore, the data emerging from these devices does not come pre-analysed and ready for submission at trial. Expert assistance is still necessary to provide context to the results, and to turn the data into something thing useful to inform the court.

The risks and benefits of these devices are complex, and in Personal Injury litigation, these can cut both ways. Although the results can sometimes be used to support a Plaintiff’s claim, they can also be used by the Defence to refute it, in the same way traditional surveillance has often been used in the past. Although poised to be a potentially helpful tool for clients with an established pre-accident history of fitness tracking, and a marked post-accident change, there are some controversial features of these devices that need to be addressed before we can fully assess the probative value of their use.

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