Last Updated: July 31st, 2020 at 3:15 pm
Read Time: 5 Minutes
Recently on the Personal Injury Blog, we explored the role social media can play in your personal injury case. In case you’re not quite up to speed yet, check that article out here. But, if you’re a returning reader, you might already know that posting on social media while in the middle of a personal injury case can actually be detrimental to your claim.
Posting images or videos of yourself engaging in a variety of physical activity or otherwise just having fun could be contrary to your claim of serious injury or loss of enjoyment of life. However, it’s not just social media that can disprove these claims. What if we told you that your smartphone or wearable smart accessories could be damaging on their own?
Smartphones and wearable tech could have a substantial potential impact on the field of personal injury now, and in the coming years. Let’s dive into what it could mean for your case.
What Could Smartphone Data Provide?
Nowadays, most smartphones come equipped with a variety of health-related apps that measure activity. In addition, there are many types of wearable fitness trackers, such as the FitBit or Apple Watch, that monitor a variety of health-related metrics. These devices track metrics such as steps taken by the wearer, diet, respiration, heart rate, and more, and relay them back to the user.
So, what does this have to do with your personal injury claim? Activity and personal health tracking data utilized as evidence in a lawsuit could potentially be catastrophic to a victim’s case. For instance, imagine a client who was recently involved in an auto accident and claims to be suffering severe damage to the back and to the knee. These injuries would most likely limit a client’s physical activity, and they could even claim loss of enjoyment of life among their damages.
Now, imagine if this same client was wearing a fitness tracker or utilizing a health app on their smartphone. If their movement statistics indicated they’ve walked multiple miles or have taken thousands of steps a day, this client could face significant questions about the true extent of their injuries. Or, even worse, their case could be dismissed entirely.
On the other hand, a client claiming serious injury could potentially benefit from their smartphone or fitness tracker. If their data reflects that activity has been minimal since the time of the accident, this information could corroborate their claim and serve as evidence in their favor.
But Wait, Is it Legal?
Gaining access to activity-tracking data, as well as other personal “health” information such as heart rate, sleep, and biometrics, may provide valuable insight regarding a personal injury claim. Given the volume of data collected by smartphones and accessories, important litigation questions begin to rise. As these are personal, private objects, is it actually legal to use them as evidence in a personal injury case? Whether or not that data is discoverable in a court of law is tricky.
Florida Rules of Civil Procedure govern court procedure for civil cases, such as personal injury law. According to Florida Rule of Civil Procedure 1.280(b)(1) the rules of civil procedure state that a party can obtain discovery regarding any matter “that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things.” In addition, Florida Rules of Civil Procedure 1.280(b)(3) states that “A party may obtain discovery of electronically stored information in accordance with these rules.
Therefore, if a client claims that their activity has been limited due to disability or pain, the existence of stored data on a smartphone or accessory should be the subject of discovery. Law on discovery of social media information is analogous to the collection of information from fitness trackers and other types wearable tech. In the landmark case of Nucci vs. Target, the Fourth District Court of Appeal held that “photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings the user may have established.” In addition, the court rules that “By creating a Facebook account, a user acknowledges that her personal information would be shared with others.”
Therefore, since many fitness trackers have a social component, by opting to share fitness data with friends, a user acknowledges that their personal information will be shared with others.
As technology has evolved, we've seen an influx of new types of evidence. Beginning with DNA evidence, the court has expanded to now also include emails, text messages, and social media posts. It can be assumed that the court would continue along this path and allow admission for smartphone and accessory evidence, especially given current Florida Rules of Civil Procedure.
A Personal Injury Attorney’s Review: Who Should be Worried?
It’s reported that nearly 250 million people in the United States own and use a smartphone. That amounts to 77 percent of the population. Moreover, at least one in six American consumers currently owns and uses wearable technology. This encompasses smart accessories such as watches and fitness monitors, like the FitBit or Apple Watch.
These accessories allow the compilation and exchange of data, without the wearer ever needing to lift a finger – just strap them on and go. For personal injury law, data collection during the discovery phase may have never been so easy. Realistically, no one should be worried - if you're suffering legitimate injuries following a personal injury accident, your smart technology should support this claim. However, all clients should be mindful that the technology we incorporate into our daily lives could haunt us should we not be truthful about the extent of our injuries.
Will your fitness tracker be used as evidence in your personal injury case? The verdict is still out. Stay tuned to the Personal Injury Blog for updates.