Apersonal injury claimant says he can’t work and has lost $100,000 a year in wages. Is this true? How can you find out? Interrogatories, depositions
and medical examinations might provide some answers.
Surveillance is expensive and no guarantee. You can check
out social media to see what he’s doing and saying. But now
there’s another way: See if he is using a self-tracking device,
such as a Fitbit, and access the data to investigate the claim.
Fitness trackers, smart watches, heart
rate monitors, blood sugar monitors,
GPS tracking devices and other wearable
devices collect and store huge amounts
of potentially crucial information. A
claimant’s personal data from one of
these devices may well turn out to be the
smoking gun that answers the ultimate
question in the claim.
Your success in this process depends
upon creativity, diligence and luck in
moving through the following four main
steps. First, determine whether a device
that tracks relevant information exists
and, if so, preserve the data. Second, acquire the data while maintaining a chain
of custody so the information can be authenticated and admissible. Third, analyze the information to assess its impact
on the important facts in dispute and decide how to use it in negotiation and trial.
Fourth, anticipate roadblocks along the
way, such as privacy concerns.
The rise of wearable tech
Wearable technology and self-tracking
devices have become ubiquitous for people of all ages. The American College of
Sports Medicine recently named “
wearable technology” the number one fitness
trend for 2016. The market for these
devices is expected to hit $5 billion this
year. People now use their smartphones
to track and analyze a virtually limitless
range of things including steps taken, calories consumed, sleep patterns, heart rate
and blood sugar levels.
These self-tracking activities are gen-
A new evidence goldmine
erally guided by the principle that “if
you can measure it, you can change it.”
This information is analogous to keep-
ing a daily weight chart or even writ-
ing a personal diary. The collection and
storage of information makes it available
for all sorts of potential uses, includ-
ing discovery in a claim or civil action.
Claims professionals who are aware that
such data exists can use the investigation
and discovery procedures currently in
place to obtain the data. To access and
interpret that data, you will likely need
the assistance of an outside vendor or an
in-house IT department, similar to the
process used to access and preserve other
forms of electronic discovery.
Most claims professionals are already
mining social media for clues regarding
claimants. This next generation of electronic media investigation taps into other
sources of information. GPS devices and
cellphones can disclose where a person
has been and who he or she may have
been talking or texting with at any given
time. Photos on cell phones and other
storage devices are an often overlooked
category of potential evidence.
There are a growing number of sources
of data that can supply highly relevant
information about a claim. These now
include devices that allow people to control their home environments, sometimes
with video surveillance. Thanks to the
“Internet of Things,” which refers to the
ability of everyday objects such as thermostats, toothbrushes and umbrellas,
to connect to the internet and exchange
data, technology is now crossing into all
aspects of our lives.