Personal activity trackers, such as the Fitbit and Nike FuelBand, help individuals track their fitness and activity levels throughout the day. With the recent surge in the popularity of these trackers, the potential for their use in personal injury litigation is becoming apparent. Using an activity tracker gives accident victims another method of demonstrating the loss they have experienced, helping their lawyer to gather evidence, and adding data to personal testimony and expert evidence as a way of proving injury.
A law firm in Calgary is utilizing the data from their client’s Fitbit to demonstrate the effects an accident has had on her activity levels. The Fitbit data can be compared to statistics to demonstrate an accident victim’s underperformance in comparison to general population activity levels. In that case, a young woman, injured in an accident four years ago, is wearing a Fitbit to track her current activity levels. Although the Fitbit was not on the market at the time of her accident, her lawyer will be comparing the data extracted from her Fitbit to statistics on the activity levels of others in her age group.
Although helpful to plaintiffs in demonstrating the debilitating effects of an accident, the use of personal activity trackers in personal litigation may open the door to defendants attempting to use these trackers as a tool to undercut a plaintiff’s evidence of disability. Though defendants will not be able to force accident victims to wear a personal activity tracker, they may attempt to requisition stored data from the companies distributing these products. This is yet another example of the increasing role of technology in personal injury litigation.
