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Can a Fitbit be used as evidence? Ask the lawyer

Q: In my injury case, the other side has asked for information from “any wearable fitness device.” I do use a Fitbit, but is that something they can invade into and, if so, can it really be used as evidence?

J.A., Brentwood

Ron Sokol

A: Research indicates many people have a Fitbit, which is an activity tracker worn around the wrist. The device can measure the person’s exercise level, diet and sleep. Users can download data from the Fitbit (such as onto their smartphone or computer) to track information, including how many steps they took, the distance covered and calories burned.

In a civil case, discovery is liberally construed. Discovery can seek information that is relevant or even reasonably calculated to lead to admissible evidence. Discovery does not require that information sought be admissible; it can simply be pertinent, informative, revealing or material (for example, “I was hurt in a car crash, but had an earlier injury to the same part of my body, so prior medical records can be sought”).

If you have contended that as a result of an injury your daily routine was adversely affected, the data from the Fitbit might support your assertion, or it may refute it.  Accordingly, discovery of data from the Fitbit may well be permissible.

As to whether the information from the Fitbit passes muster as evidence requires a more definitive analysis. A key test for evidence is reliability and the question of admissibility will be for the court to evaluate and decide.

Q: Can the police search my cell phone without a warrant?

B.L., Rancho Palos Verdes

A: In 2015, the United States Supreme Court in Riley v. California unanimously ruled that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. The reasoning is that digital data stored on a cell phone cannot itself be used as a weapon to harm the arresting officer or to assist the arrestee’s escape.  The officer can examine the physical aspects of a phone to make sure it will not be used as a weapon (for example, that there is no razor blade tucked away between the phone and its case). Then, once the officer has secured the phone and eliminated any possible threats, the data on the phone should not pose a danger.

It is possible, however, that data on the phone could be destroyed by remote wiping or data encryption. The Supreme Court has noted that in such an event a warrantless search still is unlikely to make much of a difference. Further, data on a phone can be deleted in the ordinary operation of its security features. It also was (and is) deemed of great import to the court that a person’s cell phone can house considerable private information. Bottom line, a warrantless search of a cell phone has been found (to date) to be without sufficient justification.

Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator.  It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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Source: Orange County Register

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