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.”

Case Background

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.

Judge’s Ruling

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.

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