Are you fit for trial?

Are you fit for trial?

  • Blog Post
  • Posted on 27 January 2015

With the New Year underway, many will be kick starting their resolutions of healthy eating and regular exercise following an indulgent holiday period. The health and fitness industry have been quick to act on this and now offer a range of gadgets for monitoring ones wellbeing, such as Fitbit, Jawbone, Nike Fuelband and many other devices.

Along with tracking our location via GPS similar to a modern smartphone, these devices can also monitor and record a person’s heartbeat, their sleeping patterns, how much they perspire and how many calories they are burning each day.  Conveniently, the data is automatically uploaded to a cloud server where you can then access your activities and track your progress. Yet in addition to being stored by the device and application, in many cases this data is also stored in a larger company database by the big technology players (Apple, Google and Microsoft to name a few) and provides a goldmine of information for the companies storing (and selling) this data.
In recent years we have grown more accustomed to providing information about our bodies readily (airport full body scanners, fingerprint and retinal IDs in our phones) and many concerns have been raised how companies use this data. However, it’s also worth considering how the legal industry could make use of this information should the situation arise. Although DNA evidence has been admissible in the courts for decades, a recent case seeks to see if the biometric data collected by a Fitbit device can also be relied upon.
Canadian firm McLeod Law is using information collected from their client’s Fitbit device to assess their relative fitness for a personal injury claim. The claim relies on FitBit biometric data and aims to prove their client, who previously worked as a personal trainer, is not as active as someone in their age group and profession should be. The claim will not be using the raw data from the Fitbit in the courtroom, instead the data will be processed by an analytics company, which compares an individual’s activity levels to the activity of the general population. Essentially taking one person’s data and comparing it against a database of information collected from other fitness trackers and determining where they fall on average.
Whilst this is a novel case at present, it will create an interesting precedent for use of technology in a litigation. Although the data collected from these devices is quantitative in nature, it will undoubtedly welcome debate resulting from differing interpretations of the data by the opposing parties’ expert witnesses. There may also be developments in the collection of data for lawsuits. It could be in future civil cases that a person’s “metadata” could be subpoenaed much in the same way one would subpoena for their emails or work files. Perhaps law enforcement could use the data collected to build a physiological profile of the accused by assessing their heartrate and perspiration at the time of the crime.
It is not only Personal Injury lawyers who may benefit from the use of this data. Employment Lawyers could bring a work-place stress claim by relying on information from their client’s device regarding their heart rate and sleeping patterns. Although they best get their claims in quickly, as I suspect many will have stopped using their devices by February!


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