It is estimated that more than 100 million people are wearing an Apple Watch* and another approximately 31 million people are using the Fitbit.** It is further predicted that sales and use of these devices will continue to grow. And so, as people increasingly look for wearables that both “make technology more personal” and include a “cool factor”*** we are reminded that wearables are a repository of information (The Document Demand That Seeks Electronically Stored Information) that could be discoverable in a litigation depending on the relevance of the data. The Bartis case, pending in the Eastern District of Missouri, is an interesting decision on point. (Bartis v. Biomet, Inc., 2021 WL 2092785 [E.D. Mo. May 24, 2021]).
In Bartis, multiple plaintiffs alleged they sustained personal injuries, including permanent mobility issues, as a result of the implantation of an artificial hip manufactured by Biomet, Inc. (“Biomet”). During discovery, plaintiff Guan Hollins (“Hollins”) advised, in response to an interrogatory, that he wore continuously a Fitbit to track his number of steps, heart rate, and sleep. As a result, defendants demanded Hollins produce “all data from the Fitbit and any other wearable device or other fitness tracker.” Hollins objected claiming such data was “unreliable” because he began wearing the Fitbit after revision surgery removing the Biomet artificial hip.
Defendants filed a motion to compel the production of Hollins’ Fitbit data, arguing the data was relevant to Hollins’ alleged permanent, physical injuries resulting from implantation of Biomet’s defective artificial hip. In opposition, Hollins claimed the request was a “fishing expedition” and reiterated his objection that the data was unreliable.
The Court ordered Hollins to produce the demanded data. Noting, specifically, that Hollins had provided inconsistent responses as to whether he experienced difficulty or pain walking/ jogging due to the alleged defective hip implant, the Court found Biomet’s demand for Fitbit data was hardly a fishing expedition where, as here, the data was relevant and could reveal whether Hollins was walking or jogging substantial distances. Further, the Court rejected Hollins argument that the Fitbit data was unreliable, stating that this argument went to the admissibility and weight of the data.
Although Judge Ross aptly observed there was “surprisingly little precedent” involving wearable devices, there can be no doubt that these wearable devices – and the data they store – are here to stay. Therefore, the next time you issue a litigation hold or craft a document demand, you should consider the various wearable devices that may be repositories for potentially relevant information.
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