Wearable Technology eDiscovery Considerations

What exactly is wearable tech? Wearable technology encompasses accessories that can be worn by a consumer and is meant to aid with everyday life. Wearable tech can be as simple as a Fitbit that tracks your steps towards a fitness goal or as complex as Google Glass removing the need to use our hands in the future of computing. The designs of wearable technology contain practical functions and features that can be beneficial, futuristic, and just plain fun. While they are fun for end users, they create as many electronic discovery conundrums as their predecessors email and text messaging did when they were new.

Wearable tech is just another source of user created data, much like email & text messaging. Fitbit steps/physical activity certainly may be relevant in cases involving personal injury, medical mal practice, and in the process of litigation support. As an example, Fitbit was the difference of a case in Florida when a woman attempted to call 911 to report sexual assault. Her Fitbit proved to the court that she was in fact walking around and staging the crime at the time that she claimed that she was sleeping. Typically, courts and third party technology always face a learning curve when trying to apply electronic discovery rules to new tech toys with the potential to store a custodian’s data. Wearable tech is no different and the full impact on eDiscovery and litigation is yet to be seen.

How personal is your data stored in wearable tech? What is the difference between the steps on your FitBit, versus more complex user created documents housed in Google Glass? Before attorneys can deal with reviewing the data sources, the litigation support industry will need to finalize the standardization of wearable tech forensic collection. While we may not get the answer today, these potential privacy issues are sure to sort themselves out in courtrooms across the country. In the interim, any risk/reward that might be associated with the use of wearable technology, needs to be on the radar of legal teams everywhere.