Today we have a guest post from Chris Campbell, Stephanie Peatman, and Sarah Carrier, all of DLA Piper, following up on a subject we wrote about not too long ago – ediscovery for defendants, but involving plaintiff’s devices that directly keep track of relevant health information, not social media. The more we as defense counsel can do in this regard, the better off our cases, and our clients, will be. As always, our guest posters deserve 100% of the credit (and any blame) for their work.

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This Blog recently highlighted the importance of tort defendants requesting less common forms of e-discovery, including through wearable fitness trackers, smart watches, smart rings and ever-developing applications available to the world’s 4.8 billion smartphone users. For more on these new technological capabilities and practical ways to incorporate them into your defense strategy, see our October 2024 DRI For the Defense article: Turning the Tables: Strategies for Discovering and Using Plaintiffs’ Digital Information in Mass Torts.

In addition to the helpful discovery itself, there are many other benefits of seeking digital discovery from plaintiffs, including that it could cause plaintiffs’ counsel and courts to treat the defense more fairly when it comes to other aspects of injury litigation. See, e.g., Below by Below v. Yokohama Tire Corp., 2017 WL 764824 (W.D. Wisc. Feb. 27, 2017) (granting defendant’s request for a spoliation instruction where injury plaintiff made no efforts to preserve tracking data).

Discovery is no longer a one-way street in this sense, and the defense bar should be emboldened to be creative (a client request that is often lost to the realities of mass tort defense) in this emerging area of law. For example, health care providers are integrating these “Remote Patient Monitoring” into their healthcare delivery models (e.g., confirming daily drug adherence or contemporaneous physiological updates during telehealth visits). This could be a turning point as physician supported Remote Patient Monitoring devices, under Medicare and Medicaid regulations, must be defined as “medical devices” under the Food and Drug Administration. 42 CFR 400 et seq. This builds a certain baseline of reliability and validity to the data. See, e.g., FDA Guidance for Industry: Enforcement Policy for Non-Invasive Remote Monitoring Devices Used to Support Patient Monitoring, available at https://www.fda.gov/media/136290/download.

A decade has passed since the first known personal injury case utilizing this type of personal activity data. See Fitbit Data Now Being Used In The Courtroom (Canadian case, where Plaintiff introduced tracking information to validate her previously active lifestyle). Nevertheless, court decisions remain sparse. See, e.g., Bartis v. Biomet, Inc., 2021 WL 2092785, at *2 (E.D. Mo. May 24, 2021) (“[Plaintiff’s] objection speaks to the Fitbit data’s weight, not its discoverability.”); Spoljaric v. Savarese, 121 N.Y.S.3d 531 (N.Y. Sup. Ct. 2020) (denying defendant’s request for data as it related to plaintiff’s weight loss as too speculative); Cory v. George Carden Int’l Circus, Inc., 2016 WL 3460781, at *2 (E.D. Tex. Feb. 5, 2016) (compelling production based on Defendants’ discovery requests for “fitness monitoring accessories” or “applications that exist on Plaintiff’s mobile phone whose primary purposes is the monitoring of Plaintiff’s exercise activities”).

This scarcity of precedent, however, offers significant opportunities for tort defendants who seek to establish pre-injury baselines relating to health and activity levels, refute claims that plaintiff’s injury has severely limited their ability to perform daily activ­ities, monitor recovery progress (or lack thereof) with concrete evidence, and more. Further, given the increasingly interconnected Internet of Things, discovery from these sources may even give rise to other useful information such as location history and interactions with other individuals’ smart devices. Drug and device defendants who can adapt and thoughtfully craft usable discovery, in light of these challenges, will reap the benefits. The first step as discussed in the Blog’s January 13, 2025 post is getting the information. But defense attorneys must also be prepared on the how, why, and by what means we plan to introduce the information.

There are numerous obsta­cles to presenting digital tracking evidence at summary judgment or trial and, as we’ve noted, these evi­dentiary hurdles have not yet fully played out in most courts. Rather, more generalized ESI admissibility assessments typically pre­vail. See, e.g., Fed. R. Civ. P. 37(a)(3)(B)(iv)(A party may move to compel production when another party fails to produce requested ESI); Fed. R. Civ. P. 34 (discussing production format of ESI in the absence of specifications); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007) (set­ting out factors for admissibility of ESI); United States v. Browne, 834 F.3d 403 (3d. Cir. 2016) (addressing authentication of ESI versus traditional discovery).

Having these and other anchoring ESI authorities in the absence of directly analogous case law is crucial because personal monitor­ing devices are subject to considerable reliability and authenticity concerns. (Watches and rings are designed to be removable/transferable for unknown durations of time.) These concerns are only exacerbated once expanded to digital health data col­lected on smartphones, which are “mobile” by nature. This is where witnesses (and planning) become important. See, e.g., FRE 901(b)(1) (personal knowledge witnesses); see also FRE 901(b)(3) (permitting authentication through “through appearance, con­tents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances”).

While questions may remain on the discoverability and use of personal tracking discovery in your jurisdiction, there are constants. Whether coming from your wrist or finger or biosensor-equipped headphones, the value of activity data lies in the ability to connect its use to plaintiffs’ claims. See Fed. R. Civ. P. 26(b)(1) (permitting discov­ery as to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”). And remember, “ignorance of technology… does not excuse counsel or clients from carrying out their duties.” Small v. Univ. Med. Ctr. of So. Nev., 2014 WL 4079507, *29 (D. Nev. Aug. 18, 2014).