Different human fields react to technological advancements in different ways. The legal field, one of the cornerstones of every society, is just beginning to grapple with significant changes on the horizon that are driven by technology.
Currently, wearable technology such as Fitbit bands and others that track human activity from wristbands are still a niche market. However, one can easily imagine their ubiquitous presence in a few years similar to the mainstream explosion of smartphones after the first iPhone was introduced.
Attorneys are using the data collected from wearable technology in interesting ways. On the one hand, personal injury attorneys are using data from activity wristbands to demonstrate that injured individuals are less active than they were prior to an accident.
The other side of this technology, however, is that once the data exists it may fall into the domain of evidence and opposing attorneys can petition the courts for the release of that data or request the data during discovery. Ultimately, this data about a persons daily activities can become vital to personal injury cases.
Attorneys are already exploring how the technology provides a gold mine of potentially relevant [electronically stored information] for use in litigation.
Lawyers and judges will have to think about the rules of evidence in new ways. How will data from these gadgets be authenticated? Will attorneys need to submit the source codes of the devices as well as provide access to the servers upon which the data are stored?
Lawyers have already begun to tackle these issues when using social media posts to corroborate witness testimony or impeach witness statements. In the social media realm, evidence authentication has run into problems when providers refuse to authenticate the ownership of profiles. It is likely that the authentication of information stored on electronic wearable technology will face similar hurdles. Attorneys have been successful in using cyber security professionals to demonstrate whether various computers were used to create profiles.
They are likely to find a similar workaround for any issues that emerge during evidentiary hearings where wearable technology is being introduced.
Whether plaintiffs attorneys or defense attorneys will benefit the most from the use of wearable technology in the courtroom is yet to be decided. It is clear that the tech-savvy attorneys on both sides of the table will have an advantage of their less-savvy opposing counsel.
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