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#CaseoftheWeek Episode 34: Are You Thinking About Wearable Data in Discovery?

If you aren’t thinking about wearable data in discovery, it may be time to start considering this as you prepare for discovery in your litigation matters. The #CaseoftheWeek we analyze in episode 34 is Bartis v. Biomet, Inc. 2021 WL 2092785 (E.D. Mo. 2021) which raises the issue of when data from a Fitbit is discoverable and what case law exists on discovering data from wearables. Read on to learn more about the implications.

Good morning and welcome to our #CaseoftheWeek for August 3, 2021. I am Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. Today, we are bringing you the case of the week live from beautiful Lexington, Kentucky, where I’m visiting some family. We had a great decision this week that we wanted to be able to get out to all.

This week’s decision, of course, is brought to you through our partnership with ACEDS in which each week we choose a new decision from our eDiscovery Assistant case law database to talk with you about the practical implications for litigators, for any of you involved in the discovery process, how it’ll play out for you, and what sort of implications it has for your clients and what they need to be thinking about from a practice and policy perspective.

You’ll see a link to the decision in the comment section on whatever platform you’re viewing us on, whether that’s YouTube, LinkedIn, Twitter or Facebook. You’ll also see a link today to a write up of this particular decision by Doug Austin at eDiscovery Today. We’ve included that link, as well as a link to our 2020 Case Law Report, which is also available on the eDiscovery Assistant website.

I’ve mentioned it before, but we’ve launched a new website over at eDiscovery Assistant.com, so pop on over there and sign up for our blog at www.ediscoveryassistant.com/blog. You can also sign up there to receive the case law newsletter. If you sign up for the blog, you’ll receive the case law newsletter each week. If you miss our event live, then you can catch it on the flip side on the case law newsletter that comes out each Thursday. Those are good things to get signed up for.

Let’s dive into this week’s case. This week’s case is a decision from the case of Bartis vs. Biomet. This is a case pending in the Eastern District of Missouri. This decision is from May 24, 2021 from Judge U.S. District Judge John Ross. Judge Ross has been on the bench since 2011. We have 16 decisions authored by Judge Ross on discovery issues in the eDiscovery Assistant Database. He is a knowledgeable judge on these issues. The law that he cites is spot on, and this is a great case to introduce the concept of data from wearables.

This decision in the Bartis case is on a motion to compel. The issue tags that are labeled in eDiscovery Assistant as we talked about are Internet of Things, proportionality, failure to produce and wearables.

The underlying case here in Bartis stems from injuries that the plaintiff incurred from an allegedly defective artificial hip implant that was made by the defendant. The plaintiff alleges that he’ll continue to experience pain and mobility issues and suffer permanent physical issues and injuries as a result of the hip implant. At this point in the case, the hip that was problematic has already been removed from the plaintiff, and we’re talking about injuries that he now sustained following the removal of the allegedly defective hip.

In response to an interrogatory, the plaintiff admitted here that he wears a Fitbit that tracks his number of steps, his heart rate and his sleep on a daily basis. Following that interrogatory response, the defendant then requested production of the Fitbit data and any other wearable device or other fitness tracker that the plaintiff used. Plaintiff objected, stating that the request was overly broad, unduly burdensome, not properly limited in time and scope, not reasonably calculated to the discovery of admissible evidence, and finally that he was unable to obtain the information. Plaintiff then supplemented his response by stating that the fitness tracker data is potentially unreliable and that he did not begin wearing the Fitbit until eight months after his revision surgery, which removed the artificial hip. The information that will be on the Fitbit is post the hip removal.

The defendant now seeks to compel that data, arguing that the data is relevant to causation and damage because the plaintiff’s claims of permanent injury are key here, and that if the plaintiff is running or walking miles every day, that that’s crucial evidence with regard to his long term injuries and with regard to the extent of damages that he has actually suffered if, in fact, the hip was defective.

What’s the Court’s analysis here? It’s a pretty simple case—motion to compel Fitbit data.

The Court really looks at the discoverability of wearable device data and says two things. One is not a lot of case law out there, which there isn’t. There are two or three other decisions, all of which are any eDiscovery Assistant, about wearables. Just kind of a dearth of case law on this particular issue at this point, likely because as in this case, it is a very factual, specific situation where that data is going to be relevant. The second thing the court said is we’ve got to discuss that discoverability of wearable device data in the context of the facts or a particular case. Here we’ve got a very specific allegation that the plaintiff is alleging long term injuries, and we’ve got data that’s been tracking what his physical activity has been.

Let’s look at some of those facts that the Court examines in its analysis. First, the plaintiff really claims that he suffers these physical injuries due to the implementation of the hip, that he begins wearing the Fitbit approximately eight months after his explantation surgery. But what the court focuses on here is that there are some inconsistencies with the plaintiff in his testimony and his interrogatory answers and his objection to providing this data. At his deposition, the plaintiff admitted that he can walk over a mile without pain or discomfort. He can move furniture. He can jog, and he can climb stairs. His long term damage claims say he can’t do things like play basketball or softball. The Court says, “look, your admission that you can walk or jog without pain and discomfort certainly diminishes the Fitbit data relevance,” but the Court notes that the plaintiff really hasn’t been that consistent. Sometimes he testifies that he has a lot of difficulty walking due to pain. Other times, he says in an interrogatory, other times in his testimony, he says he can do the things we mentioned. The plaintiff’s expert designations also reference in their reports that he has difficulty walking. It’s those inconsistencies that caused the Court to say, “well, there may be some data that’s relevant here in the Fitbit.”

I think the take away from there is you’ve got to make sure that your client’s testimony and your written discovery responses are consistent on what the physical capabilities exist if you’re going to try and dispute the relevance of this type of data.

The Court found that the plaintiff’s activities after the alleged defective hip—try saying that 10 times fast—was removed to be relevant and ordered that a portion of the data should be produced and that it was a low burden of production. There’s not really any discussion about why it’s a low burden of production in terms of getting to the data, and we’ll cover that.

The Court cites the liberal discovery rules, minimal burden of production and limited privacy risks in ordering the production. But he also states that—and this is a quote:

“Plaintiff’s wearing of an activity tracker like a Fitbit, does not warrant a fishing expedition into the data from such a device.”

And that’s a key quote here that I think we’ll see that cited in other decisions on wearables going forward.

Here, because the plaintiff’s physical activity was relevant to the claims of its longer term physical injury, the data could reveal that the plaintiff is walking or jogging substantial distances. As such, the argument that the Fitbit data was unreliable or that was irrelevant was rejected by the Court. The Court then looked at the reliability of the data from the Fitbit because the plaintiff argued, “hey, look, we don’t know what it captured, what it didn’t capture. We don’t know whether the plaintiff was wearing it at one time or somebody else was wearing. There are a lot of reasons that the reliability of wearable data can be called into question.” The reliability is something that comes up. But the court says reliability is not the issue. When we’re talking about discoverability, discoverability is relevance. This data is relevant. When we talk about admissibility or reliability, we’ll talk about that at a later point in the case. The court did require the production of data, but the Court also permitted the redaction of any information related to heart rate, sleep records, or physical location as being irrelevant and citing privacy concerns on behalf of the plaintiff.

Motion to compel is granted, what are our key takeaways here? First, we got to start thinking about wearable data. If you’re not already thinking about it, if you’re an organization that’s managing phones that are given out to your individual employees and they are company phones or you have company information on those phones, you need to know that when we have wearables, that data is being transmitted to the phone and it is collected from the phone. You’ve got a crossover implication of a potential bring your own device (BYOD), if your company is still engaged there, or your policy needs to discuss whether or not individuals can put wearable app tracking materials on their company owned phones. That’s going to be your issue.

Once again with the phones — we’re implicating more and more mobile devices. It feels like every week we’re talking about a new application of a mobile device. We talked about WhatsApp and Slack the other day and now we’re talking about wearables. We’re seeing more and more information that’s coming from mobile devices. Instructing your employees, having a policy and plan in place as to company information on phones or using phones for company related information, even if it’s a personal phone, is going to implicate that device for purposes of discovery. You’ve got to be aware of that.

If you have a case, if you are working in the employment context where you see a lot of disability, if you’re working in the personal injury context, any kind of case where you’re going to have a personal injury and  the physical fitness or the physical attributes of your client or of a party are going to be at issue, it’s very likely that wearable data is going to be something you need to be focused on. You need to think about preservation. You need to make sure that your client is preserving that information. You need to think about collection, how that information is going to be provided, and you need to think about scope. What is the scope of the information that’s being preserved and collected and what of that is actually relevant to the case? Because you need to be able to protect your client’s privacy. There’s no discussion at this point, but I can see insurance implications going forward for wearable device data being produced in discovery.

Lots of considerations there. You’ve got to make sure you’re taking the steps necessary to protect your client’s privacy and that you’re only providing whatever information is relevant to the particular dispute. I think there’s also going to be some kinds of issues about the format in which data is provided, whether it’s able to be provided in the native format that’s going to allow the other side to be able to create visuals and information about that data or whether it already exists in such in the app. Formats are going to be another issue that we’re going to see with wearable data.

All right. That’s our case of the week for this week. Short and sweet. Thanks for joining me. I’ll be back next week with another edition of our #CaseoftheWeek from eDiscovery Assistant.

If you are an ACEDS member and interested in using eDiscovery Assistant, there is a discount available for current ACEDS members and a trial for folks who are studying for the exam. If you’re interested in either of those, please drop us a line at aceds@ediscoveryassistant.com and our team will reach out.

If you’re interested in doing a free trial of our case law and resource database, you can jump to ediscoveryassistant.com  and sign up to get started in the upper right hand corner. Or you can drop us a line at support@eDiscovery Assistant.com, and we’ll get you going. Thanks so much.

Have a great week. Stay safe and healthy and put those masks on.

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