Recently, courts have been exploring the use of data from wearable fitness trackers in litigation. Devices like the FitBit, Jawbone UP, and Nike Fuelband have the capability to track all kinds of fitness-related data, such as steps taken, heart rate, temperature, calories burned, and sleep patterns. In cases where someone’s physical abilities are at issue, as is often the case with disability insurance claims, this data can be valuable. But who is this data most valuable to–the claimant or the insurance company? And is that value outweighed by a claimant’s right to privacy? These are questions yet to be fully addressed.
Benefits and Drawbacks. For claimants, data from a wearable fitness tracker could be a great way to show how a disability has caused a cessation or downward trend in activity. Providing the data to an insurance company may give a better picture, over a longer period of time, than any single doctor’s visit or Independent Medical Examination.
On the other hand, providing wearable fitness tracker data to an insurance company could hurt a claim in several ways. First, if your disability isn’t the type that would prevent you from walking (such as a hand injury, vision problems, orthopedic injuries where movement is part of physical therapy, etc.), step counts could be irrelevant. Nevertheless, data showing a high step count can give an insurance claims adjuster or a jury the erroneous impression that you are very physically active and thus not “disabled.”
Second, for claimants that haven’t accurately described their limitations to the insurance company, the tracker’s data can be presented as objective evidence that the claimants weren’t telling the truth. For instance, if a claimant wrote on a claim form that he “never” walks for more than 10 minutes at a time, then he has a very unusual day where he had to walk for 30 minutes, the insurance company could use the fitness tracker data to argue that the claimant is a liar. (In such a scenario, the claimant should have told the insurer that he “rarely” walks more than 10 minutes, or that he tries to avoid doing so, as opposed to saying he “never” does).
Third, inaccurate data could lead the insurer to make inaccurate conclusions. Wearable fitness trackers aren’t perfect. Step trackers tend to log movements other than walking as steps, such as when the wearer raises her arms up and down. Heart rate monitors will track increases in heart rate that are the result of mental or emotional stress in the exact same way they track increases caused by physical exertion. There is also the possibility of human error that affects the accuracy of the data. For example, if you forget to turn your device into “sleep” mode, it can’t track how restless your sleep is.
When Data Can Be Required. An insured may or may not want to provide fitness tracking data to an insurance company voluntarily, but if the insurance company requests it, does the claimant have to comply? The answer is less than clear.
In the claim context (when no litigation has ensued), the insurance company can only impose requirements covered in the policy. Of course, policies don’t explicitly state that a claimant has to provide fitness tracker data–at least not yet. However, an insurance company could argue that policy clauses requiring you to “cooperate” with the claims investigation or provide “proof of loss satisfactory to us” include a requirement to produce this type of data. In those instances, it’s best to have an attorney evaluate the request to see if it is, in fact, required under the policy.
If a lawsuit has been filed, the insurance company may have more leeway when it comes to requesting wearable fitness tracker data. While it is doubtful that an insurer could force a claimant to wear a tracker if he or she isn’t already, it’s easy to imagine a case where an insurer requests existing data from a device that a claimant already uses.
In federal courts, where most disability insurance cases are litigated, the insurance company can ask for any information that is relevant, or reasonably calculated to lead to the discovery of information that is relevant, to the claims or defenses in the case. The only exceptions are for things like privileged information (such as communications with your attorney) or requests that cause undue annoyance, embarrassment, oppression, or burden.
For data stored online, insurers could subpoena the data directly from the device manufacturer. Fortunately, some fitness tracker manufacturers have already publicly stated that they will resist such subpoenas to the extent possible. Insurance company lawyers are more likely to request that data from the claimant directly, in which case it becomes very important for the claimant’s attorney to evaluate whether that request is allowed under court rules.