Back in the day, your wristwatch only told you the time of day and, if you were lucky, maybe the date too. But nowadays it seems like everyone has some sort of smart watch or fitness tracker on their wrist. A recent study showed that nearly one-in-five U.S. adults utilize wearable health tracking technology in their daily lives. Such technologies are great for informing the user of their daily health habits, activities, and abilities, but could this information also be solicited in discovery?
This was precisely the question addressed in Bartis v. Biomet Inc., 2021 WL 2092785 (E.D. Mo. May 24, 2021). In Bartis, a Missouri district court held that health data collected and stored in an individual’s FitBit could be discovered in a personal injury case. There, several plaintiffs had brought a personal injury action for substantial injuries they sustained following the implantation of an artificial hip manufactured and marketed by defendants, BioMet Inc. One plaintiff, Guan Hollins, had specifically alleged injuries of persistent pain and lack of mobility due to the defect. During discovery, BioMet Inc. learned that Hollins consistently wore a FitBit following the hip implantation, and this tracked his number of steps, heart rate, and sleep. BioMet Inc. requested Hollins produce all data collected by his FitBit, but Hollins refused on the grounds that such data was potentially unreliable and that it did not accurately measure his complained of injuries, which include difficulties playing basketball and softball.
The Missouri district court disagreed with Hollins and ordered him to produce the FitBit data. The Court held that, while there is surprisingly little precedent on the discoverability of wearable devices, such data was discoverable in this case because the FitBit data sought was relevant to Hollins’ claims of long-term physical injury.
While this decision occurred outside Ohio, it demonstrates the future of wearable health tracking devices in modern discovery requests. This case, and the decisions cited within, demonstrate a growing acceptance among courts to permit such discovery for claims involving personal injury or other health-related ailments.
The attorneys at Fishel Downey regularly advise employers on discovery requests and during discovery disputes. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.