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Could Your Client’s Fitbit Swing the Case Against You?

Jessica Carter

Feb 15 2016

Wearable technology – such as Apple Watch, Fitbit and Google Glass – is starting to become more common on the streets of America. It’s also beginning to make its way into litigation.

A Fitbit device has already played a prominent role in a criminal case, where police investigators were able to determine that a woman had filed a false police report by accessing data from her Fitbit that established her movements during a time when she claimed to be asleep. And given the ability of wearables to perform tasks such as tracking an individual’s heart rate, take photos and videos, run searches on the Web, and record geo-location data, legal experts predict that wearables will produce a wide range of electronic evidence in commercial litigation.

But in spite of forecasts that the wearable technology market is now entering a phase of rapid growth, most litigation professionals are not yet taking action to prepare for the eDiscovery risks and challenges associated with wearable mobile devices, according to industry experts who spoke at an AccessData educational program.

At a lively panel discussion at LegalTech® New York 2016, “Mitigating Risk in a Mobile Era,” research was introduced from an ALM/AccessData survey that found 34 percent of lawyers are “not concerned” about the impact of wearable technology on eDiscovery and an additional 39 percent said it was “too early to tell” how significant the impact will be. Just 2 percent said it was an “urgent concern” and another 4 percent said they had “established a process” for dealing with wearables in eDiscovery. An impromptu polling of the audience members in attendance for the LegalTech session resulted in responses that were very consistent with the survey findings.

The LegalTech panel session was moderated by Ari Kaplan, founder of eDiscovery advisory firm Ari Kaplan Advisors, and included James Sherer, co-chair of the Information Governance practice at BakerHostetler; Tracy Drynan, senior attorney in the Litigation Group at DrinkerBiddle; Gregory Witczak, global eDiscovery at Deutsche Bank; and Kevin DeLong, vice president of mobile forensics at AccessData.

The lack of preparation for the impact of wearable technology is surprising in light of the rapid growth of wearables. A recent analyst report from IDTechEx forecasts that sales of wearable technology devices are growing quickly, with the market expected to soar from $20 billion in 2015 to nearly $70 billion in 2025. This market includes eyeglasses, jewelry, headgear, belts, armwear, footwear and other mobile devices that can be worn on the body.

It’s conceivable that wearable technology could present the next major headache for corporate counsel and their litigation teams. There is a wealth of data stored in wearable devices and all of that information is potentially subject to discovery if it’s relevant to a lawsuit. Lawyers should become more familiar with the evidentiary risks posed by wearables, and their litigation team members should be more pro-active in order to prepare themselves for the unique eDiscovery challenges they will soon confront with wearable technology.

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