By: Wesley Heim, Associate, Tampa

In legal defense, there are few things more satisfying than unraveling a web of lies offered by a fraudulent claimant. Unfortunately, discovering information to prove fraud isn’t all that simple. Wearable technology such as a Fitbit, Garmin, Jawbone Up and many others have emerged seemingly overnight in the new field of fitness tracking. These relatively inexpensive devices are worn for most if not all of the day and periodically sync with smartphones or otherwise display trends in a user’s movement. Users wear these devices for a variety of reasons but most all of them center around encouraging a more active lifestyle and learning more about their daily activity. While this information is certainly useful from a fitness standpoint, it also has striking applications in fraud detection; that is, if you can get it into your hands and then into court…

There are significant hurdles to authenticating data from a wearable device for use in court evidence. While technology is slowly making its way into our courtrooms, there is a palpable resistance engineered into the very philosophy behind the admission of evidence: reliability.

If you’ve ever used a fitness tracker, you know how variable the results can be. It is not uncommon for a device to report you have walked a half-mile based on the motion of your arm when in reality you have just consumed a bag of popcorn, kernel by kernel. But these types of errors are quickly being eliminated as the devices become more sophisticated and integrate with the GPS of a paired smartphone or using complex motion analysis to deduce what is the jolt of an afternoon jog versus the jolt of opening the freezer for another afternoon snack. As reliability increases, so does the viability of using these devices in court as evidence of fraud. From there, the issue turns to legally obtaining the information.

When relevant, the defense certainly may send a request to produce for fitness tracker information to a claimant or plaintiff – after all, they have placed their physical condition at issue. However, unlike sending a subpoena to a third party for medical records, the claimant/plaintiff has possession of the information you are after, and asking the perpetrator of fraud to turn over incriminating evidence may be certainly protected by the 5^th Amendment…in addition to being naïve.

Many of these fitness trackers work in conjunction with online services which help the user to track their progress with detail. Often times this information is stored in company servers for the manufacturer of the device. When this is the case, a subpoena may be sent to the company for this information.

Expert witnesses are the last link to bringing this evidence into court. Companies such as Vivametrica specialize in comparing individual fitness tracker data to a much larger dataset in order to draw more meaningful information about a user. By comparing a litigant’s information to the public’s, the defense could assert a user’s abilities are beyond what they are reporting. Another foreseeable method of utilizing this data would be in conjunction with video surveillance contradicting deposition testimony. However, all of this currently comes at a significant cost for the defense.

There are no doubt significant obstacles standing between the free admissibility of information from fitness trackers and wearable electronics in court. While the information currently may only be circumstantial, or even feasible in particularly high exposure circumstances, it seems only a matter of time until the defense and injured party alike will be able to utilize metadata from trackers to assist in their case.