Last November, a Calgary lawyer made headlines when he said he would be using a Fitbit wristband device to provide courtroom evidence of injury involving a client who was a personal trainer in “peak physical shape” before allegedly being hurt in a car accident four years ago.
Simon Muller of McLeod Law LLP, head of the firm’s personal injury group, says although medical opinions have been provided, lawyers have had their say and chances to ask questions, he is now turning to Fitbit to boost his client’s case. The device is worn on the wrist and uses an accelerometer to track activity. It monitors sleep patterns and number of steps taken and stairs climbed.
Muller actually wants to use it to show how inactive his client has become since her injury and has asked Vivametrica, a company that analyzes health data from personal devices, to compare his client’s stats against other people in her age range and profession. Vivametrica is an open source data analytics platform that pulls data from smartphones and wearable fitness devices — with user consent — to get a picture of health trends.
It’s believed to be the first time a personal health data device has been used in a legal proceeding. “My initial reaction was that I wasn’t surprised that a plaintiff would be using it to try and bolster their case, but I think the more interesting question is what happens when a defendant requests this type of data as part of the discovery process?” says Kris Klein, a privacy lawyer with nNovation LLP in Ottawa. “I think it’s an interesting dilemma courts and the civil procedure of courts will have to grapple with going forward.”
In a recent article Klein wrote called “Fitbit and litigant privacy,” he noted: “Every bit of data that is created is potentially discoverable if it ever becomes relevant to a legal dispute.” Klein says when it comes to the discovery process it’s typically a private affair between two litigants. “It’s rare you get the opportunity to make the larger public policy arguments in front of a judge on that type of case. I’m skeptical that it’s an appropriate venue for these types of issues to be hashed out. I don’t see the larger public policy debate in this area being put forward as part of the discovery process.”
Klein says he thinks there is the potential for holes in the evidence the Fitbit will provide but it’s Muller’s client’s prerogative to use it as one form of the evidence to help her claim that she’s not as active as she used to be.
Using personal health data in legal matters is “a sticky area” says Mark Hayes, of Hayes eLaw LLP in Toronto. “We have personal health information laws in Canada in a number of provinces and it’s kind of an odd divide because in most of these laws there is the assumption health care providers are the ones who are the repositories of health information and we worry about how they care for information. Now with this information being created by individuals or their devices, who is protecting that data?”
He says it’s still “very early days” in terms of personal health collection devices and apps that do everything from monitor your heart rate to track how far you went on your morning run. But as personal devices that collect information become more sophisticated and more common the detection or analysis of body conditions can be done more easily outside the traditional circle of care. Hayes says that means all of a sudden personal health information is “outside the regulatory framework” set up thus far.
“So how does it then get used and how do you control it?” asks Hayes. “We’ve been talking about these devices largely in the privacy sphere for the last couple of years because you want to make sure these things are protected and know when an app is collecting information about your health condition. Now we’re starting to see this information can be used voluntarily or involuntarily in other contexts.”
Part of the problem with many devices and apps is that the data they produce can be compromised, says Hayes. “It can all be hacked — there are technical and non-technical ways to do it. So you have questionable average data and questionable manipulated data and then you’re asking the court to make a conclusion. The whole thing is a little bit odd and not particularly reliable.”
Not only is the individual’s information potentially not particularly accurate — they may deliberately try to be less active — but in this case they will also be bringing in an expert to say what the average activity level is “which is subject to all kinds of frailties as well,” says Hayes.
In the Calgary case, it is the plaintiff offering up her own personal data. What happens if a defence lawyer orders a plaintiff to provide that data? It’s not hard to see that collection and use of personal data could become a slippery slope, and there’s no reason to think these devices won’t become targets for hackers as well. “Most of our privacy rules are in the context of commercial situations,” says Hayes. “So when you get into the realm of personal injury our personal information laws don’t apply to those things. The Court of Appeal on intrusion upon seclusion aside, there isn’t a general right of personal privacy of individuals and a lot of people don’t realize there isn’t really a restriction on me using the personal information of some individual for non-commercial purposes even without their consent.”
It’s perhaps too early to tell how much of an impact the use of Fitbit data will have on personal injury claims. “On the one hand I applaud this law firm in Calgary for taking a unique approach,” says Marc Flisfeder, an associate in the personal injury practice at Lerners LLP. “I query how beneficial the data will be and in particular the way the data is being analyzed; I think it would be more helpful at mediation as opposed to a trial.”
Flisfeder suggests there are also some evidentiary issues that could arise. “For example, they are using Vivametrica to analyze the data. That’s similar to demonstrative evidence where you’re assessing whether it is admissible. You have to look at whether it is a fair depiction of the facts and evidence, which is the issue with any assessment tool. You need to look at whether you are comparing a plaintiff of similar age and gender and where are they getting that data — ultimately it’s being used as a baseline.”
Mark MacNeill, a partner and personal injury lawyer with Brauti Thorning Zibarras says a Fitbit is “just another tool in the basket, but I don’t think it’s revolutionary because you’re still going to need to lead other evidence and use it in combination. Everybody is searching for that objective thing. It’s unfair to say the defence side is completely cynical but they will probably have legitimate questions about its use.
“If I was going to use it effectively I would use it as a component and make the data available to both sides and say it’s just another tool like an MRI or CT scan. It’s another piece of data to interpret. But it has to be explained right to a jury. If the technology is relatively straightforward and not expensive it can be used on a broader scale. The company that provides it is the one that will have to back things up. It will be interesting to see how the courts treat it.”