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In personal injury lawsuits, the injured party is usually required to produce documents relating to their health.  Medical records from a doctor or medical practitioner are the most obvious of these, but it is becoming more common to include electronic data. Electronic data about your health and fitness might be stored on a host of devices such as phones, tablets, video game consoles, GPS navigators and exercise equipment. This data could be relevant and producible in a lawsuit under certain circumstances.

Obvious examples are wearable fitness devices such as the Fitbit which can capture distance travelled, speed, time, heart rate, sleep patterns, sedentary activities, and nutritional information.  Many exercise machines now ask the user to sign in and will track workouts whether at home or at the gym.

A vehicle’s GPS navigation system can track where the vehicle has been but it can also track daily habits. The navigation system could provide information about how long someone was able to sit in a car or their activity level if they were running errands all day.

Remember the Wii Fit with the balance board?  This interactive exercise game was popular a few years ago.  It captured data such as weight, balance, exercise type, duration and intensity.   The game would assess the user’s level of fitness which seemed to report it as that of a middle aged person whether you were 5 or 75. Think about all of the information about the user that was stored on that system.

Video game habits can reveal all kinds of interesting information. For example, recently in the U.S. a Plaintiff was claiming damages for injuries that included loss of eyesight sustained at the Defendant’s circus. After the Defendant was tipped off by a Facebook post of the Plaintiff’s high score on the game “Cookie Jam”, it was successful in obtaining an Order for access to the Plaintiff’s mobile phone, Fitbit and computers.  The Court found that evidence that the Plaintiff had been engaging in activities that required acute eyesight for significant amounts of time and/or strenuous activities may be relevant to the claims of injury or disability. [Cory v. Carden International Circus, Inc., 2016 U.S. Dist. LEXIS 86745].

And how about Pokémon Go?  The fact that someone spends hours each day chasing Pokémon might be of interest in a lawsuit.

As the use of electronic data becomes more common in litigation, we can expect to see this type of data used more often in personal injury cases.

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