Part 2 of 2 (See Part 1 here)
Fitbit is a neat little device for tracking your activity. Importantly, Fitbit (and similar devices) creates, and stores, data. A lot of data. About you. And that data is a tempting target in litigation. But be warned, the implications of using Fitbit data in court should terrify you!
5) Even Inadmissible Evidence Just Needs an Expert!
So let’s assume that Fitbit data, whether in raw or comparative form, requires an expert to be introduced (I hope…). What, exactly, will the expert testify to? Obviously, they have to be able to testify that the information is authentic and accurate. They’ll have to prove the chain of custody, and then relate what the data actually says. Or…
… none of that has to happen, because in most jurisdictions, an expert can rely on inadmissible evidence to form their opinion! (See Fed. R. Evid. 703).
Personally, I have to believe that any reasonable judge would preclude the raw Fitbit data from being entered into evidence on its own. But if an expert in data analytics, relying on a public database of similar data, presents an expert opinion based on the Fitbit data, what will a judge do?
As long as there is a “scientific methodology” to the expert’s analysis, you’ll likely hear those dreaded words: “Goes to weight, not admissibility.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995). At this point, the expert’s testimony has the imprimatur of the court, regardless how effectively you challenge his credibility. Raw Fitbit data has a lot of holes that likely precludes admissibility, but once an expert gets involved, the waters get a LOT murkier.
It’s coming into evidence anyway. Terrified?
Sure, you can try to challenge the expert’s reliance on Fitbit data (technical jargon that the jury adores!). Hope you’ve got a killer cross. Otherwise, you’re gonna need your own expert just to deal with the Fitbit data, meaning…
6) Fitbit Data may Singlehandedly Increase the Cost of Litigation!
Imagine all the types of cases where Fitbit data would be potentially relevant. Yep, all of them (basically). Imagine a case where one of the following wouldn’t be relevant. For any particular moment or period of time, a person’s:
- physical condition
- activity level
- heart rate (hello, divorce attorneys!)
- whether they were listening to music
This information goes way beyond personal injury. Think about employment discrimination cases. Industrial sabotage. Theft of trade secrets or intellectual property. Basically any case where the facts involve a single person’s activity. That means you now have an ethical duty to investigate! (Check out Jeff Taylor’s blog post for some go-by discovery requests!)
Now every single case will require an expert who can analyze the Fitbit data. Assuming it’s not relevant or important, that expert might be all that’s needed (which still isn’t cheap, based on eDiscovery rates at the moment). What if the information IS important? Can you just feel the cost of litigation going up?
It’s coming into evidence anyway. Terrified?
That pre-litigation budget is going to need a bit more cash. Maybe your client won’t be upset. On the other hand, maybe your client is being asked by the government. In which case…
7) Oh, and Say Goodbye to the 5th Amendment!
Assuming the Fitbit data is accurate (will we ever know?), it could potentially be the best evidence of your entire existence. From the moment you activate it to the moment you deactivate it, it’s recording your comings and goings, your physical activity, and your sleep patterns. It knows if you’ve gone up any stairs, tracks everywhere you’ve been.
It’s the best evidence against yourself that you could ever provide.
It might have flown under the radar for most attorneys, but a recent Virginia case bears discussion. In that case, police officers wanted to compel a suspect to unlock his iPhone. The suspect refused to provide the password. The officers demanded he unlock the phone using the fingerprint sensor. He refused again. Courts have held that a person can’t be compelled to provide their password, and the fingerprint thing is supposed to be better security, so…
The court made the guy unlock his phone. Passwords are protected. Fingerprints are not. The officers had the right to compel him to unlock his phone using his fingerprint.
It would seem that law enforcement would need a warrant to seize and analyze your Fitbit data, right? Well, the Supreme Court only recently held that smartphones get that protection. The opinion went to great lengths to describe the voluminous information that a smartphone contains as justification. Law enforcement officers or district court magistrates and judges might just conclude that a Fitbit just isn’t the same.
You’re GOING to give up evidence against yourself. Terrified?
If you’re not, you should be (and REALLY haven’t been paying attention!). Even if a court eventually decides that Fitbit data is protected, it seems unlikely that law enforcement will demonstrate restraint in the mean time. The incredible lengths that police departments are going to in order to conceal illegal searches is troubling, even where courts have already ruled that particular searches are illegal.
Oh, and the evidence collected likely won’t be excluded, either.
And do you think the police officers are going to take into account all the weaknesses of Fitbit data that I’ve listed above? Or prosecutors? History suggests no.
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