Fit Bit – Discovery and Litigation in the Age of Wearable Tech

Discovery and Litigation in the Age of Wearable Tech

By: Allan Ziffra


            The introduction of wearable devices is bringing about a change in the personal injury legal field. These devices are electronics or computers that are incorporated into items of clothing and accessories which can comfortably be worn on the body. The most well-known examples include the FitBit, Apple Watch, Samsung Gear, and Jawbone. The purpose of these devices is to record data persistently. The data most pertinent to the personal injury field involves health tracking.

Wearable devices track and hold data which may exist for months in the cloud. These devices may be used to track sleep patterns and activity. They also can track triggering events like traumatic incidents which cause higher respiration and pulse rates. Some devices can do “time-travel” and track your travel patterns and track events you have went to. They are sometimes tied to map applications that can draw your route that particular day.

Why is this relevant to the legal field? The data tracked by these wearable devices can be used either to support your personal injury claim or hurt it. Either party to a lawsuit may be able to get this data and then use it against the other. These devices can show if one party to a lawsuit was speeding at the time of an auto accident, as well as texting. Likewise, if a device is linked to your phone and your phone is destroyed during an auto accident, the device may still maintain a record of that vital information. These types of cases are out there and are becoming ever more common.

The data can show declines in health that can help a personal injury claim. On the other hand, the device can show improvements in activities, which would tend to hurt a personal injury claim. In additionally, wearable devices can be used to disprove alibis in criminal cases. Essentially, these devices are a double-edged sword which must be used with care.

What if you deny having a wearable device? This will not help you in any way. Often times, these wearable devices are linked to accounts online which may “sync” the data to a cloud storage system. Parties to a lawsuit will be able to contact the manufacturers of these devices to find out whether you have an account with them. Likewise, people who connect the devices to computers could inadvertently be transferring data from these devices. A party to a lawsuit may be able to get your computer data in that case. The main lesson here is that one way or another, an opposing party could find out the truth as your use of a wearable device.

If you are hiring a lawyer because you have been injured, you want the lawyer to be able to create the strongest possible case against the opponent. This means considering wearable devices as a potential source of evidence. The attorneys at Rue & Ziffra have been handling personal injury cases for 40 years. If you or someone you know has been involved in an accident, call 386-788-7700. For more information, please visit:

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