Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F e b r u A r y 2 0 1 5 39 he next time you post the stats of your morn- ing run to Facebook via RunKeeper or enter some health data to your iPhone, think about this: what if down the road someone sought to use it against you? Last November, a Calgary lawyer made headlines when he said he would be using a Fitbit wristband device to provide courtroom evidence of injury involving a client who was a personal trainer in "peak physical shape" before allegedly being hurt in a car accident four years ago. Simon Muller of McLeod Law LLP, head of the firm's personal injury group, says although medical opinions have been provided, lawyers have had their say and chances to ask questions, he is now turning to Fitbit to boost his client's case. The device is worn on the wrist and uses an accelerometer to track activity. It monitors sleep patterns and number of steps taken and stairs climbed. Muller actually wants to use it to show how inactive his client has become since her injury and has asked Vivametrica, a company that analyzes health data from personal devices, to compare his client's stats against other people in her age range and profes- sion. Vivametrica is an open source data analytics platform that pulls data from smartphones and wearable fitness devices — with user consent — to get a picture of health trends. It's believed to be the first time a personal health data device has been used in a legal proceeding. "My initial reaction was that I wasn't surprised that a plaintiff would be using it to try and bolster their case, but I think the more interesting question is what happens when a defendant requests this type of data as part of the discovery process?" says Kris Klein, a privacy lawyer with nNovation LLP in Ottawa. "I think it's an interesting dilemma courts and the civil procedure of courts will have to grapple with going forward." In a recent article Klein wrote called "Fitbit and litigant privacy," he noted: "Every bit of data that is cre- ated is potentially discoverable if it ever becomes relevant to a legal dispute." Klein says when it comes to the discov- ery process it's typically a private affair between two litigants. "It's rare you get the opportunity to make the larger pub- lic policy arguments in front of a judge on that type of case. I'm skeptical that it's an appropriate venue for these types of issues to be hashed out. I don't see the larger public policy debate in this area being put forward as part of the discovery process." Klein says he thinks there is the L e g A L r e p o rt \ I t / p r I vA C y L AW Matthew Billington Data fit for the courtroom? Calgary case raises questions about use of personal health information collected by wearable tech. By Jennifer Brown T

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