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The Facts and Evidence may be Sitting on Plaintiff’s Wrist

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

President John Adams, 1770

John Adams made that statement during his successful defense of British soldiers.  Today, “facts and evidence” are being established by something that may be sitting on a plaintiff’s wrist right now.  The health data from wearable technology devices, such as Fitbit, Garmin or Apple Watch can offer a goldmine of evidence in litigation.  

Wearable technology devices  “collect data about a user’s steps walked, calories burned, activity intensity, sleep, and other health and fitness metrics . . . devices also connect to the internet . . . allow[ing] the user to view and analyze the data collected. . .”  Fitbug Ltd. v. Fitbug, Inc., 78 F.Supp.3d 1180 (N.D. Ca. 2015).  

Data from wearable devices has demonstrated value in many types of litigation. In Commonwealth v. Risley, Case No. CP-36-CR-0002937 (Lancaster Co., Pa., Apr. 17, 2015), Fitbit data established the complainant, Ms. Risley, was lying about being sexually assaulted.  During their investigation, the police compared data from Ms. Risley’s Fitbit to her prior statement.  The Fitbit data showed that Ms. Risely was awake and walking around the entire night prior to the incident and did not go to bed as she had reported.  This data, coupled with other evidence, led authorities to discredit the assault allegations and Ms. Risely was charged with filing a false report.  

In the civil context, such data can also be used in personal injury cases to prove — or disprove — allegations of injury and facts indicating fault.  Fitbit evidence was introduced in a personal injury case in Canada in 2014, where the plaintiff’s lawyers used the data from plaintiff’s Fitbit tracker to show how her lifestyle had been affected following a car accident.  See Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014).  

In a San Francisco case, Flint v. Strava, Case No. CGC-12-521659 (Super. Ct., San Francisco Co., June 18, 2012), data from a “Strava” wearable device was used to prove a bicyclist was speeding and therefore at fault for the accident at issue. Strava is an app used to track running, cycling, and swimming. The software provides statistics such as distance, pace, speed and elevation, and also provides comparisons with other users.  

Unlike traditional surveillance data, which can be costly to obtain and, as a result, usually limited to a few days, data from wearable devices can be gathered at minimal cost and may reveal activity over much longer periods of time, from weeks to months.  

The value of this data in defense of civil litigation can be considerable and game-changing.  For example, consider a typical plaintiff who claims injuries have caused decreased mobility and continual pain, preventing plaintiff from exercising as plaintiff had done before the injury.  However, data from plaintiff’s Garmin device confirm that plaintiff continues to exercise regularly every week — in complete contradiction of plaintiff’s allegations.  The potential value of such facts and evidence, gathered literally off plaintiff’s own hand, is self-evident. 

So, how do we recommend you get this information?

First, and foremost, add wearable logs and data to your document preservation request.  You should already be sending a document preservation letter at the outset of litigation that includes traditional electronically stored information and social media postings, so just add to it.  

Second, include requests for wearable device data and information into your discovery requests and deposition outlines.  Unless you obtain these materials with plaintiff’s consent through discovery, it will be difficult or impossible obtain.  For example, under the Stored Communication Act, Apple will not provide any iCloud content in response to third-party requests without written notarized consent from the customer whose data is being requested.  

Sample discovery requests are listed below:

  • Please identify each fitness tracking device that you have used during the past five years (e.g., Fitbit, Peloton, Garmin Vivofit, Microsoft Band, Striiv Fusion, Jawbone UP, Misfit Shine, Nike+, Apple Watch, Polar, Bowflex Boost, BodyMedia Fit Link, Withings Pulse or similar hardware device).  For each device, please identify the model and type, the location of the device, the username for any associated account, the date(s) you began using the device. If you stopped using the device, identify the date(s) stopped and identify the present location thereof and the name, present address and position of the person or persons having present custody thereof.
  • Please identify any fitness tracking software that you have used during the past five years on your mobile phone or computer (e.g., Endomondo, MapMyFitness, My Fitness Pal, Runkeeper, Strava, etc.).  For each software, please identify the developer, software name and version, the location of the software, the username for any associated account, and the date(s) you began using the software.  If you stopped using the software, identify the date(s) stopped.
  • Please produce a printout of all data collected by your [insert] fitness tracking device from the date of the events which are the subject of your Complaint to the present, whether such data is currently stored on the device, another device, server, cloud storage or service. 
  • Please provide location data for your smartphone or other wearable device, from the date of the events which are the subject of your Complaint to the present. To view and download device location history on an  Android or devices with Google accounts, go to https:// maps.google.com/locationhistory/b/0; or for Apple devices, go to Privacy>Location Services>System Services>Frequent Locations and provide all screen shots of every location.    

Third, remember authentication matters.  Ask questions in written discovery and depositions designed to help with authentication. In some cases, it may be necessary to get expert assistance to review the data.

Finally, know your devices and software.  The names will change over time.  Also, you may need to specify particularized  information or provide instructions to plaintiff’s counsel specific to each device or software.   For example: 

To view and download device location history:

  • Android or devices with Google accounts, go to https://maps.google.com/locationhistory/b/0
  • Apple devices, go to Privacy>Location Services>System Services>Frequent Locations and take screen shots of the locations.  

Apple devices, go to Settings>Privacy>Location Services>System Services>Significant Locations. You will see a list of locations.  Open each location of interest and take a screen shot of the location, which will look something like this:

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As you can see from the screen shot, even cell signals from a boat were recorded, likely where the boat was stationary for a sufficient time.

If you want detailed times spent at each address within a location, click on each blue dot and you can take more screen shots.

As with any GPS system, it appears the identification of exact addresses is not always precise.  Also, location services can often be disabled by the user.  

To produce a printout of data collected:

  • FitBit information can be accessed on a computer using email and password at www.fitbit.com/login.
  • Apple Watch data is available for download using the associated phone’s Health app.  Once in the Health app, tap the profile badge on the top right. On the profile screen, scroll down and tap the ‘Export Health Data’ button. The app will create a zipped file that can be emailed or downloaded
  • Instructions for exporting activities and wellness data from Garmin software can be found at https://support.garmin.com/en-US/?faq=W1TvTPW8JZ6LfJSfK512Q8

Sample screenshots from a Garmin Connect pulled from a Garmin watch, showing color-coded monthly activity data from June 2018 and details (including route data) from a 5 mile run, below:

pastedGraphic_1.png pastedGraphic_2.png

If you have any questions about this article, please contact Alison Feehan at 804.377.1279 or afeehan@setlifflaw.com or Steve Setliff at 804.377.1261 or ssetliff@setlifflaw.com.