When it comes to the courtroom, expert witnesses are nothing new. Often, the testimonial of doctors, psychologists, and tech experts can help determine the outcome of a civil or criminal trial. But a new case may be a stepping-stone in changing what qualifies as an “expert” in today’s courtroom.
According to a recent Forbes article, a Canadian law firm representing a personal trainer in a personal injury lawsuit is using data collected from her FitBit to prove that she hasn't regained her pre-injury levels of activity. As you may know, the extent to which an injury interrupts a person’s ability to work can impact whether they win a civil lawsuit and how much they are awarded in damages.
Though it’s hard to say whether or not US courts will follow Canada’s lead, let’s take a look at this case’s implications and what your business can learn from it.
Cross-Examining the FitBit: How Digital Trails Could Be Used in Future Lawsuits
The personal trainer’s lawyers plan to process her FitBit data through an analytics platform to compare her activity levels to someone of her age and profession. This could feasibly open doors for other types of data analytics in the courtroom. For example:
- Someone who claims their reputation was damaged because of libel or slander could point to data that shows a decline in their number of followers on social media or a rise in negative comments and feedback. (Related reading: “Social Media and Business Risk: Slander, Libel, Invasion of Privacy, and Copyright Infringement.”)
- Health apps could track a person’s exercise, diet, and sleep patterns, which could support a case for emotional distress, loss of consortium, or how an injury has impacted their work.
At this point, these are only conjectures. We have yet to see how the FitBit metrics will play out in court. Sometimes, technology is so incomprehensible that it could actually hurt someone’s case.
For example, say an information security consultant is sued because they failed to prevent a client’s data breach. In trying to argue that they took every precaution necessary to safeguard the client’s data, the consultant’s lawyer details how networks function, how firewalls and encryption work, and what security patches are. Because there’s no cut-and-dry standard by which to gauge the IT professional’s work, the defense hinges on the court understanding these technical nuances, which can be a gamble.
Is Data-Tracking Tech an Ally or Enemy for Small Businesses in Court?
As we discussed above, data analytics can be a double-edged sword in the courtroom. A tech-savvy plaintiff could use their data-tracking apps as proof of how an injury your business allegedly caused has measurably impacted them.
On the other hand, your business may be able to wield data to support its defense. For example, let’s say you run a marketing firm and you’re being sued over professional negligence. A former client alleges you failed to keep them adequately informed and you made executive decisions without their consent.
However, you use an online project management site so your client can clearly see project milestones. You also use the site to submit materials for review and make sure your client signs off on each item before it moves forward. You even trained your client on how to use the site and had them sign a contract stating they had received this training. Your lawyer could feasibly demonstrate that the project management account proves that you communicated clearly with the client and obtained their written consent before phases of the project were deemed complete.
Still, it never hurts to cover your bases. Be sure you use client contracts that specifically spell out what your business is responsible for and what it isn’t, and keep good records. You never know when an accident or project from the past could come back to bite your business.