This blog has long encouraged defendants in prescription medical product liability litigation to seek relevant ediscovery from plaintiffs.  We even have an ediscovery cheat sheet with almost 250 favorable decisions either allowing defense-side ediscovery in personal injury cases or else sanctioning plaintiffs for spoliating sought-after electronic data.  But we confess, we’ve been focused so firmly on social media and smartphones, where ediscovery from plaintiffs originated, that we have ignored the rising popularity of fitness trackers, Fitbits, smart watches, smart rings and similar devices (even clothing) being marketed to people who may eventually become plaintiffs.  These products create a great deal of health-related (and other) information that is of obvious relevance in mass (and other) tort litigation.

What we found is that surprisingly few defendants seem to be seeking this type of information – at least there are very few decisions involving discovery of these devices.

Only one significant decision is directly on point.  Bartis v. Biomet, Inc., 2021 WL 2092785 (E.D. Mo. May 24, 2021), a product liability case involving an artificial hip, exemplifies both the potential value of such information and the efforts plaintiffs will go to conceal it.  In response to interrogatories, the  plaintiff “admitted that he consistently wears a Fitbit which tracks his number of steps, heart rate, and sleep.”  Id. at *1.  In response to a defense ediscovery response, however, plaintiff changed his tune:

[Plaintiff] initially objected . . . that he is unable to obtain the information.  [He] 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.

Id.  A motion to compel followed.  Since plaintiff had put his physical condition into evidence, and was less than consistent about his claimed injuries, the motion was granted.

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. . . .  [I]n this case, the extent of [plaintiff’s] physical activity is relevant to his claims of long-term physical injury.  [He] broadly alleges that he suffers long-term pain and lack of physical mobility due to the allegedly defective hip implant.  [His] supposed ability to walk or jog short distances without discomfort does not render the Fitbit data completely irrelevant, as the data could reveal that [plaintiff] is walking or jogging substantial distances.  [Plaintiff’s reliability] objection speaks to the Fitbit data’s weight, not its discoverability.  [Plaintiff] has also not been entirely consistent as to whether he experiences pain while walking.

Id. at 2 (citation omitted).

And surprisingly, that’s it for any detailed discussions involving fitness trackers or other forms of wearable devices that record health/physical activity information.  Here are the other cases we found that might be relevant.  Blount v. Stanley Engineering Fastening, 2020 WL 5038522, at *8 (W.D. Ky. Aug. 26, 2020) (smart watch discovery granted in discrimination case where plaintiff was observed wearing the watch at work); Hinostroza v. Denny’s Inc., 2018 WL 3212014, at *5 (D. Nev. June 29, 2018) (in light of defendant’s argument that “data of any type of FitBit, or other activity tracker” would be “relevant because, if Plaintiff is walking/running miles every day, then this would affect the validity of her claim,” plaintiff required “to supplement her response with a description of the search she conducted for responsive documents”) (citations and quotation marks omitted); Cory v. George Carden International Circus, Inc., 2016 WL 3460781, at *2 (E.D. Tex. Feb. 5, 2016) (“a mobile app that indicates Plaintiff performs strenuous activities may be relevant to claims of injury or disability”); Yates v. Rogers, 2021 N.Y. Misc. Lexis 63250, at *1 (N.Y. Sup. Sept. 20, 2021) (granting motion to compel that “if plaintiff wears or has apps or smart watches (i.e. Apple Watch, FITBITS watch, Samsung watch) that monitor step counts, heart rate, or sleep, plaintiff shall preserve and maintain all data from such devices from the date of loss until present relating to plaintiff’s 1) daily step count, 2) daily heart rate monitoring especially when heart rate exceeds 90 beats per minute 3) daily sleep log”); Brown v. O’Reilly Auto Enterprises LLC, 2021 Cal. Super. Lexis 116034, at *5-6 (Cal. Super. May 7, 2021) (discovery of “documents regarding wearable devices that monitor a person’s physical activity and condition” held “relevant because it could lead to the discovery of admissible evidence regarding the injuries Plaintiff claims she suffered as a result of the incident and her claim that such have limited her ability to engage in normal daily activities”); Luna v. Vossmeye, 2021 Cal. Super. Lexis 2324, at *3-4 (Cal. Super. Jan. 6, 2021) (plaintiff compelled to produce “any data Plaintiff recorded on his cell phone or Fitbit to track his personal fitness” during a specified period because “Defendant is entitled to information concerning Defendant’s health at the time of the accident”); McCartney v. Russ Auto, 2016 Ore. Cir. Lexis 7050, at *2 (Ore. Cir. Dec. 5, 2016) (“Defendants’ motion to compel is granted, and this order requires plaintiff to produce in its native format all fitness apps and data in those apps on plaintiff’s iPhone(s) or other devices”).

While we don’t do the other side’s research for them, our readers should also note the distinguishability of the denial of ediscovery into health-related information from certain wearable devices in In re 3M Combat Arms Earplug Products Liability Litigation, 2022 WL 4448917 (N.D. Fla. Sept. 23, 2022).  Putting aside the generally pro-plaintiff bias that permeated that MDL, a number of substantive limitations concerning the discovery being sought contributed to the denial in Combat Arms:  (1) capability to record relevant sound exposure data only existed during a small portion of the relevant time period and in a limited number of devices; (2) production would involve a great deal of irrelevant, but sensitive, personal health information; (3) the information was not linked to identified plaintiffs, but included whoever might have carried or worn the devices; and (4) the requests came relatively late in the litigation.  Id. at *4-5.

Most litigation involving prescription medical products, by contrast, would involve a wider range of potentially relevant information than just hearing loss, thus making the Combat Arms result inapplicable.  Further, 2025 is not 2015-19 in terms of the proliferation of wearable devices, so objections (2) and (3) in Combat Arms are less likely to apply now.  Finally, objection (4) can be obviated by seeking ediscovery into personal devices at the outset of the litigation.

Frankly, we were expecting to find more law than we did on this topic when we decided to investigate it.  We hope defendants use what we’ve found to begin pursuing this type of ediscovery more frequently.  First, this kind of relatively “hard” data can be used to avoid having to take plaintiffs’ “word” about the extent of continuing disabilities when there is reason to suspect exaggeration.  Second, and particularly in mass torts, plaintiffs should have to do their fair share of the  “work,” rather than ediscovery being a burden shouldered exclusively by defendants.