Fitbit’s tracking function can be valuable evidence in many lawsuits. Technology can be fun to use, it can also be useful. But like any technological device it can be used to prove you are lying or be misused and provide a false impression. Evidence is what lawsuits are all about. Evidence creates an impression about the truth. Sometimes those impressions are right on and other times they are misleading the fact finder. All good lawyers have had the experience of one fact changing everything about the case which leads to a completely opposite conclusion. A verdict can be right or wrong depending on the evidence not presented.

Does the defense want to know if you use a Fitbit? How should you answer that interrogatory? If the first time you think about this is after you file suit, then you are already in trouble. Fitbits aren't perfect nor is the information they produce. But they are evidence nonetheless. I predict these GPS data points will become more and more important in the practice of personal injury and workers' compensation claim litigation. Attorney Lombardi

I recall a young man being found not guilty by providing evidence using a mileage log he kept of trips he took. His mileage logs proved to a jury he could not have been present at the murder scene. That was a murder case from the 1980's involving Larry Scalise. Logs to show times, dates and locations can be important in many cases. This is why the Fitbit might provide evidence needed by one side or the other in any lawsuit. 

A Fitbit is a wrist band that electronically tracks steps, distance, calories burned, floors climbed, active minutes and sleep. It includes a caller ID. Some track continuous heart rate. Others include the ability to track other types of activities like bike riding, running, walking and step climbing. Attorney Lombardi uses one and is familiar with the limits of the type he uses. If you wear one and are in a lawsuit you should know what yours shows and how it works along with what makes it not work accurately. 

I am familiar with Fitbit’s tracking function for working out. In a recent article on the ABA website the author outlined several instances where those bits of tracking information were used as evidence to either convict the person of lying or to show sleep status. I know from use that the sleep tracking function is not very accurate. You should be aware that some lawyers are seeking the production of Fitbit data in criminal, personal injury and workers’ compensation cases. Like a lie detector test you can’t trust this technology to be accurate and rather than argue about what the data points show or don’t show you may want to remove the bracelet if you are involved in any litigation that focuses on your activity level. The same goes for cell phone GPS tracking.

Liars beware: Fitbit and other technology may expose you

This is pretty unusual from what I know of the rules of evidence; but in reality she may not have been lying. The Fitbit isn't perfect and sometimes records activities, like being awake, when you are sleeping restlessly. So what they believe to be a lie may actually not be. In order to establish a foundation for admission of this evidence an expert would be required to testify as to its reliability. Without Fitbit's propriety algorithm it is doubtful the Fitbit tracking record would be allowed into court. This is my opinion; courts across the country might disagree. 

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death
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