Activity Tracker Information Requests in Discovery: Is my watch a smoking gun?
As I check my watch while writing this post, I look to see how many (how few) steps I have taken today, and the paucity of activity dots that mark the minutes of this hour tell me that I have been sitting, inactive, at my desk for far too long. My lack of exercise today notwithstanding, the watch on my wrist (and the corresponding app on my phone) contains a treasure trove of information that can be extremely useful – not only in the context of attempting to keep me active and healthy, but also in terms of litigation.
What was I doing in morning three weeks ago? Truthfully, I don't remember. But my watch does, and I can look at my activity level, my heart rate, my sleep tracker, etc. put the pieces of the puzzle together and determine an answer to that question.
This is useful information in the context of personal injury litigation. Think about it. You are involved in a case where the Plaintiff is claiming various injuries that allegedly prevent him or her from maintaining his or her pre-incident level of activity. Typically, you would have to look for subjective clues to prove or disprove the claim. Did the Plaintiff's weight fluctuate, did his or her gym attendance drop off, etc.? These are good questions, but not necessarily the best evidence to support or refute his or her claim. However, if you are able to collect the data recorded on his or her activity tracker, you are now able to compare pre and post-incident activity levels and definitively determine whether this particular claim is accurate or not.
Activity trackers are not all that new, but like many things, it is taking the legal community time to grasp the full extent of the newish technology's utility. A story from a Connecticut murder investigation highlights the utility of this type of information and shows us that activity trackers may be useful for more than just showing how much and how often a user exercised. The information that can be gleaned from discovery is growing with growing popularity of various daily-use technologies, and, while we may not appreciate the volume of potential information available, or the potential uses of the available information, we would be wise to collect it and determine what there is to know. Who knows, there may be a "smoking gun" imbedded in there.