It it not the first time that Fitbit data is used in the context of a litigation. It was reported last year that a Canadian law firm intended to use information from a Fitbit fitness tracker for the first time in court as an objective measure of activity. The information was to be provided by the plaintiff, in a personal injury lawsuit, in an attempt to demonstrate life-affecting reduced activity post injury. The information was therefore being willingly provided by the plaintiff and processed by data company Vivametrica, which collects data from wearables and compares it with the activity and health of the general population.

In this new case, Fitbit data is being used to self-incriminate its user.

This type of data is likely to be more commonly used in litigation in the future if health devices are growing in popularity: these devices may collect photos and track health and lifestyle information which may be recoverable in litigation if the evidence is relevant to the case at hand in which case this information may be subpoenaed by courts. This being said, if the information is collected by a third party, in situations in which the user has an expectation of privacy, the information may be more difficult to use as evidence, at least in some jurisdictions. For instance, in Quebec, the Civil Code prohibits the use of any evidence obtained under such circumstances that fundamental rights and freedoms are violated and whose use would tend to bring the administration of justice into disrepute. This could be the case, for instance, if the user has installed privacy settings to limit the sharing of its information, and these settings were circumvented by an employer or insurance company to access the information.