In Bartis, et al. v. Biomet, Inc., et al., No. 4:13-CV-00657-JAR (E.D. Mo. May 24, 2021), Missouri District Judge John A. Ross granted in part the defendants’ Motion to Compel plaintiff’s Fitbit data, ordering plaintiff Guan Hollins to “produce all data, including step counts, from his Fitbit from the time he began wearing the device through the present date” while allowing him to “redact any information concerning his heart rate, sleep records, or location, as such information is not relevant to this litigation and raises privacy concerns.”
In this consolidated action, the plaintiffs alleged that they suffered substantial injuries from the implantation of an artificial hip manufactured and marketed by Defendants. Plaintiff Hollins claimed that he will continue to experience pain and lack of mobility due to the allegedly defective device. In response to an interrogatory by the defendants, Hollins admitted that he consistently wore a Fitbit which tracks his number of steps, heart rate, and sleep…The defendants requested production of all data from the Fitbit and any other wearable device or other fitness tracker used by Hollins…Hollins initially objected that the requests are “overly broad, unduly burdensome, not properly limited in time and scope, [ ] not calculated to lead to the discovery of admissible evidence,” and that he was unable to obtain the information…Hollins supplemented this response by stating that fitness tracker data is potentially unreliable and he did not begin wearing the Fitbit until eight months after his revision surgery explanting the artificial hip…As a result, the defendants sought an order from the Court compelling Hollins to produce the requested data.
The defendants argued that the ESI sought was directly relevant to causation and damages because Hollins’ “claims of permanent injury are central to this lawsuit” and if Hollins “were walking or running miles every day, the impact on the validity of his claim would be crucial”…Hollins responded that he has never claimed difficulty walking or jogging and the defendants’ request for production amounts to a fishing expedition. However, in response to an interrogatory, Hollins specifically stated that he “has difficulty walking due to pain” and his expert designations also referenced difficulty walking.
Noting that “[t]here is surprisingly little precedent on this issue given the ubiquitous presence of wearable devices”, Judge Ross cited one New York state case where the court described defendant’s request for Fitbit data as an “overly broad fishing expedition not based upon any supportable evidence”, but he also noted that “[a]t least one federal court has recognized, however, that ‘a mobile app that indicates Plaintiff performs strenuous activities may be relevant to claims of injury or disability.’… Like most discovery disputes, the discoverability of wearable device data depends upon the facts of the particular case.”
In ruling on this case, Judge Ross stated: “Considering the liberal discovery rules, minimal burden of production, and limited privacy risks, this Court will require production of a portion of the Fitbit data. A plaintiff’s wearing of an activity tracker like a Fitbit does not warrant a fishing expedition into the data from such device…But in this case, the extent of Hollins’ physical activity is relevant to his claims of long-term physical injury. Hollins broadly alleges that he suffers long-term pain and lack of physical mobility due to the allegedly defective hip implant. Hollins’ supposed ability to walk or jog short distances without discomfort does not render the Fitbit data completely irrelevant, as the data could reveal that Hollins is walking or jogging substantial distances. Hollins’ objection speaks to the Fitbit data’s weight, not its discoverability. Hollins has also not been entirely consistent as to whether he experiences pain while walking.”
As a result, Judge Ross stated: “This Court finds that Hollins’ post-explantation activity levels are relevant and a portion of the Fitbit data should be produced, especially given the extremely low burden of production” and he granted in part the defendants’ Motion to Compel plaintiff’s Fitbit data, except for “information concerning his heart rate, sleep records, or location”, citing relevancy and privacy concerns.
So, what do you think? Are you surprised that the Court granted the Motion to Compel plaintiff’s Fitbit data? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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[…] Court Grants Defendants’ Motion to Compel Plaintiff’s Fitbit Data […]
I’m not surprised at all by the Court’s ruling here – it’s clearly the correct result, and the data itself is extremely relevant to the plaintiff’s claims. Indeed, it may be more relevant than anything else with respect to the issues it will illuminate. We’ve been helping our clients see the importance of this type of data in many cases, whether personal-injury/on-the-job injury claims, medical device claims, or really, any litigation – the usefulness of such information doesn’t just stop at injury cases.
The real issue underlying this, of course, is that most people have no real idea that this type of data exists – or if they do, they don’t think about how it might be used against them. We’ve written a number of blogs on these topics, and whether it’s IoT devices like Fitbits, or commercial devices like those used in manufacturing, construction and the like, the data they provide can be more useful and telling than the best emails in the case.
Wearable technology is becoming more common in industries like manufacturing and healthcare as a way to increase productivity and minimize errors. From smart personal protection equipment to sensors that monitor falls and worker locations, wearable technology is making its way into many industries too. In construction, for example, general contractors can use the data gathered from construction wearables and other IoT devices to improve safety, reduce worker injuries and boost efficiency on job sites. For those companies, and their insurance agencies, that data can be a goldmine of information to help them more thoroughly investigate worker and other claims.
This particular case has a similar flavor to social media in some sense. More and more injury claims are being disproven by social media posts (the injured person – or their friends or family – posting pictures or videos of a party with the injured person dancing up a storm, for example). And then there’s all the Ring videos and other ever-growing video records that are being used by law enforcement and civil litigators alike.
And these data sources are incredibly useful – data doesn’t generally lie. It’s an incredibly reliable data source that can often prove a case – or defeat a claim – nearly by itself. That’s why we spend a good amount of time with our clients and their attorneys strategizing and thinking about all these potential resources. It’s promising to hear that attorneys are thinking to ask for this information in their document requests. This is also another reason to leverage custodian questionnaires like never before and ask custodians about social media, personal computer or email usage, IoT devices – both personal and ones used in the business itself.
One thing is certain – the sources of data continue to grow every day, and that’s not going to stop anytime soon. So, it’s more important today than ever before that attorneys turn over every possible stone and think of every possible area where essential data like this may reside. And why it’s ever more useful to bring in experts who think of these things every single day. A little consulting time at the outset of a case to discuss subjects like this will pay dividends throughout! (And yes, I realize that’s a bit of a shameless plug, but that doesn’t make it any less true!)
[…] Devices: These devices are becoming more discoverable in litigation, even civil litigation as this case […]
[…] Additional stats are available here and the full 21-page report is available here (you don’t even have to sign up to get it!). Security of IoT devices are becoming more of a concern every day and we’re even starting to see some civil litigation related to them (including this case). […]
[…] (even pacemakers) come up more frequently and we even saw Fitbit evidence become important in a civil case last year. Yet another source of data becoming important for discovery purposes these […]