United States: Wearable Device Data: The Next Big Thing For Employment Litigation Cases

Last Updated: September 27 2016
Article by Karla Grossenbacher and Selyn Hong

Wearable device data may be the next big thing in the world of evidence for employment cases since social media. Given that it has already been used in personal injury and criminal cases, it is only a matter of time before wearable device data is proffered as evidence in an employment case.

From Fitbit to the Nike FuelBand to a slew of others, the worldwide wearable market has exploded in recent years. In a world increasingly obsessed with health and fitness, wearable devices offer instantaneous and up-to-the-minute data on a number of metrics that allow the user to assess his or her own health and fitness. Wearable devices can track information like heart rate, calories, general level of physical activity, steps taken, diet, blood glucose levels and even sleep patterns. Given the nature of the information captured, it is easy to see how wearable device data may be relevant to claims of disability discrimination, workers' compensation and even harassment.

Evidence of What?

Wearable device data has been used in at least two nonemployment cases to date. In 2014, a personal trainer in Calgary, Canada, used wearable device data in her personal injury case to demonstrate the extent of her injuries. She wore a Fitbit during an "assessment period" to show that, as a result of her injuries, she maintained activity levels under a baseline for someone of her age and profession.

And in 2015, police in Lancaster, Pennsylvania used Fitbit data to support criminal charges against a woman who they asserted had made a false report to law enforcement that resulted in a manhunt for her alleged assailant. The woman had claimed that a man had broken into the house in which she was staying while she was asleep, pulled her out of bed and sexually assaulted her. But her Fitbit told a different story. It revealed that she had been awake and walking around at the time she claimed to have been attacked while sleeping. The Fitbit data, along with other evidence, led investigators to conclude that the woman was lying and charges were brought against her.

You Are What You Wear

In the employment litigation context, wearable device data could help a factfinder determine whether a plaintiff is "disabled," has a "serious medical condition" or suffered a workplace injury. Data such as heart rate, physical activity level, number of steps taken, and sleep patterns could all be probative of an individual's physical and mental state. Employers facing disability discrimination claims could use wearable device data much like they would use medical records and social media postings — to investigate and, if appropriate, discount a plaintiff's claim that his or her "major life activities" like walking or sleeping have been substantially limited.

In harassment cases, wearable device data could show whether a plaintiff's heart rate went up when the claimed harassment occurred. It could also provide probative evidence of whether harassment was severe and pervasive during the relevant time period. Wearable device data could also help prove or disprove any claimed emotional distress damages. For example, wearable device data could help demonstrate sleep loss or even an increased heart rate as probative evidence of anxiety.

To Admit or Not to Admit

Despite its obvious probative value, the admissibility of wearable device data as evidence in employment litigation is not a foregone conclusion. Wearable devices come with inherent reliability issues. For instance, devices that count steps based solely on arm movements may erroneously count fidgeting while lying in bed as steps taken. In 2015, a California man filed a class action suit against Fitbit, alleging that the company's sleep tracking is inaccurate and constitutes false advertising. Additionally, a user may forget to wear the device or neglect to change the battery. And there is always the possibility of data manipulation whether by jostling to create false readings or having someone else wear the device.

But that is not to say that wearable device data should not be admissible. Courts and legal practitioners alike regularly work with flawed forms of evidence. They know all too well that eye witnesses have faulty memories, that experts in the same field may reach vastly different conclusions based on identical data, and that witnesses may possess their own innate biases that color their testimony. Yet, this does not stop such evidence from being admissible.

Similarly, the aforementioned reliability issues will not stop wearable device data from making its way into courtrooms across the Unites States. Theoretically, permitting such information may even remove potential biases from the human lens and offer some objectivity. In addition, a court could find wearable device data admissible and then determine what weight to give it based on the quality of the data provided.

Objection! Privacy ... Right?

The information gathered by an individual's wearable devices is inherently personal. Wearable device data can be obtained from either the wearable device manufacturer or directly from the individual's device. From a privacy perspective, the threshold issues are whether or not the user has a reasonable expectation of privacy in the wearable device data, and if so, whether or not the user has consented to or authorized the disclosure of the data.

In terms of statutory protections, at first blush, heart rates and glucose levels seem like information that would be considered "protected health information" in the normal sense of the term. However, the Health Insurance Portability and Accountability Act covers only certain information maintained by certain medical entities, and it does not protect data stored on an individual's wearable device.

Even if medical privacy laws did cover wearable device data, it would likely fall under an exception to HIPAA for certain legal requests. A number of wearable device companies have privacy policies that explicitly state that data may be released in the event of litigation. For example, Fitbit's privacy policy states that it will release data "reasonably necessary to comply with a law, regulation [or] valid legal process[.]" And Jawbone's policy similarly states that it "may disclose your personal information to ... comply with relevant laws, regulatory requirements and to respond to lawful requests, court orders and legal process[.]"

Under common law, given the personal nature of the information on a wearable device, an individual could interpose an objection based on invasion of privacy to the disclosure of data from his or her wearable device. The best way to avoid such a claim is to obtain the individual's consent or assert that there is no expectation of privacy with respect to the data on the device. In the Lancaster, Pennsylvania criminal case, the police claimed that the alleged victim of the sexual assault had consented to their review of the data from her Fitbit. In the Calgary case involving the personal trainer, she put the information on the device at issue herself and offered it into evidence to support her case. In an employment case, defense counsel could argue that, by bringing the claim regarding a workplace injury or a disability or requesting emotional distress damages, the plaintiff is putting the information on the wearable device at issue.

Strategies for Use of Wearable Device Data In Employment Cases

  • Take the time to learn about the various types of wearable devices and how they work. Some may count moving your arms around as walking (which is a great morale booster, at best). Others will not register cycling as activity. Know what you are working with so you can determine whether the information is relevant and helpful to your case.
  • Just as you would include requests for social media information in your discovery requests, include requests for wearable device data.
  • Be prepared to address objections based on privacy interests and determine how you will show consent or authorization for the disclosure.
  • Consider engaging a qualified expert who can reliably explain and interpret the wearable device data.
  • Get to know your local analytics companies now; you are bound to need one in an employment case coming near you soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Karla Grossenbacher
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions