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Personal Tracking Device has Potentially Changed the Game

August 4, 2020

On September 18, 2018, Fitbit, one of the leading manufacturers of wearable fitness trackers, issued a press release launching its Fitbit Care initiative.  The initiative boasts a “connected health platform for health plans, employers, and health systems that combines health coaching and virtual care.”  Fitbit announces that Humana, Inc. has tapped Fitbit as a preferred partner for some of its segments.  Fitbit appears resolved to be seen as a healthcare tool and to foster relationships with other industries by billing itself as such.

Fitbit Care is accessible through the Fitbit Health Solutions portal which provides interfaces for individuals, employers, and health insurers and providers.  The portal identifies a variety of products and services dependent upon the category of visitor.  For example, employers are offered a Fitbit Care engagement platform whereby the device is shipped to employees who can access a company-personalized wellness program that tracks and promotes employee health and compiles the data into an interface.  From this interface, employers can view the health progress of any employee participant.  One employer option allows enrolled employees access to a personal health coach which includes “tracking for 100+ health and lifestyle-related metrics” and “rich health data” accessible to participants and providers.

Clearly, access to a person’s date- and time-stamped activity levels, sleep schedule, and whereabouts is coveted information in a personal injury case.  The information can essentially be used as an extremely cheap and accurate method of surveillance that tends to sit easier with a jury than the private investigator hiding in the bushes behind Plaintiff’s house obtaining video footage.  If a Plaintiff testifies that she only sleeps 2 hours per night since her injury, for example, a defense attorney need only point to the Fitbit reflecting months of data reflecting 8 hours of sleep per night.  Plaintiff is impeached with her own unbiased device. 

While Fitbit data has been obtained and used in personal injury litigation prior to now, almost all of those cases have been criminal cases or cases where the Fitbit user consents via authorization to the release of the data.   Fitbit’s position on a civil subpoena has traditionally mirrored those of other online data treasure troves such as Facebook, Instagram, and Apple whereby the production of the requested information is hotly contested as an invasion of customer privacy.  In their arguments for client privacy protections, these companies almost always reference the fact that they provide users with control over privacy settings and that a user’s choice to engage such settings is indicative of the level of protection that should be applied to such information.  The defense attorney always responds, often rhetorically, with: How can someone have a reasonable expectation of privacy where she is sharing her information with 647 other people?  In these situations, defense attorneys are left to build a proper foundation in a case to prove to the presiding judge that the plaintiff should be compelled by court order to sign an authorization to obtain the desired information.

It is fascinating to think about the implications of Fitbit’s new initiative in the personal injury litigation industry.  Fitbit’s new initiative opens up an entirely new angle for obtaining data for litigation purposes.  In most cases, when a Plaintiff’s damage claims include claims of physical injury and lost wages, his healthcare provider records, insurance claim records, and employment records become accessible to the defense for purposes of investigating the claims.  Fitbit Care is a portal whereby an individual voluntarily shares his data with his employer and his health insurance provider.  The sharing of this data across these lines arguably derails privacy arguments by both Plaintiff and Fitbit.  Further, depending on whether employers and providers store the data that is being shared in the portal, the Fitbit data could potentially become a part of someone’s personnel file or healthcare provider file, which both fall within the scope of discovery in a typical personal injury case.  This would create a situation where a subpoena directed at Fitbit is not even needed since the data can be accessed via the employer or healthcare providers.  Additionally, a plaintiff who has availed himself of the personal health coach could find himself with a treating expert of sorts who can provide a unique perspective on Plaintiff’s claim, or in contrast, Plaintiff has provided a pre-packaged witness for the defense.  Regardless of which side stands to benefit from the information, one can see that the Fitbit Care initiative is almost certain to have a huge impact on personal injury cases.  Similarly, when the scope of these ramifications is expanded, one can only imagine the potential impact of the initiative on employment law and worker’s compensation issues.