LANCASTER, Pa. -- Wearable
activity trackers are essential for many people at the gym, but it seems now
that Fitbit, Jawbone and others could be just as important in the courtroom, given precedents set in a 2015 Lancaster case that debunked a plaintiff's story, as well as other cases elsewhere.
devices give wearers instant information, including their heart rate, calories
burned, steps taken and sleep patterns. People use this information to assess
their health as well as activity levels. Now, the data may also be used to provide
evidence in workplace cases, such as an employee’s disability discrimination
claim, workers’ compensation request or on-the-job harassment.
device data is just starting to make its way into courts, and we are just at
the beginning of seeing how helpful and/or reliable it can be as evidence,”
attorney Karla Grossenbacher told The
Pennsylvania Record. Grossenbacher, an attorney with Seyfarth Shaw’s
Washington, D.C., office, specializes in labor and employment law.
from wearable fitness devices has already been used as evidence in personal
injury and criminal cases.
In a 2015 case from Pennsylvania, Lancaster police used data from the
wearable fitness device Fitbit in a criminal case against a woman charged with
making a false report that led to a manhunt. The woman told police a man broke
into a home she was sleeping in and then sexually assaulted her. However, her
Fitbit showed she was awake and walking around at that time. Charges were filed
against the woman.
Thus far, though, wearable
device data has not been used frequently in workplace litigation, Grossenbacher said, but
data of heart rates, activity levels and sleep patterns could help assess
someone’s physical and mental states. Employers may be able to rely on the data
to determine whether in fact an employee’s daily activities, like walking or sleeping, have
been adversely affected.
A personal trainer in
Calgary, Canada, used her device data in 2014 as evidence of her injuries. Her
Fitbit showed her activity levels were lower than someone of her age and
profession would have.
emotional distress also can be supported by evidence from wearable fitness
devices. Data showing an increased heart rate at the time of an alleged
incident could support a plaintiff’s harassment claim, while sleep loss could
be evidence of anxiety from an incident.
the data can be used to establish a lack of credibility against a plaintiff.
For employees, data from their wearable devices can provide necessary support
to their claims, so they should not stop wearing the devices if they plan to
take legal action against their employer.
device data only undermines an employee's case if the disability claim is
unfounded,” Grossenbacher said.
devices do have drawbacks, including reliability issues. Data can be affected
by having another person wear the device, a user forgetting to wear the device
or the device having a dead battery.
Still, Grossenbacher believes data from
the wearable device should be admitted as evidence. She points to witnesses with
faulty memories or personal biases, as well as field experts reaching different
conclusions as examples of evidence that is still permitted.
wearable fitness devices can be obtained from the wearer or the device
manufacturer. While the Health Insurance Portability and Accountability Act
(HIPAA) protects certain medical information as private, it doesn’t protect the
information stored on wearable fitness devices. As such, many of the device
manufacturers’ policies state that the data may be released in litigation. An
individual’s consent should be obtained to admit the data in litigation.
Lancaster, case, police said they had the alleged assault victim’s
consent to use the wearable device data.
consent from the wearer is critical to the privacy issues presented by an
employer's use of wearable device data in litigation,” Grossenbacher said. “Another
important hurdle is demonstrating the legitimate reason for which the data
needs to be accessed in the litigation and being able to represent that the
employer will be accessing the data in a way that is narrowly tailored to that