The Apple Watch, Google Glass and Fitbit are among the most recognized wearable gadgets in the market today that are revolutionizing the way we store, retrieve and develop information.
With the advent of wearable technology, however, come ethical implications that may soon also revolutionize aspects of the practice of law.
The implications of the capabilities of these wearable devices are already creeping into the legal field, and the data gathered will soon prove to be a legal asset or an ethical headache. The conversation has already begun in Canada, where a personal injury plaintiff’s attorney is attempting, for the first time ever, to use data from his client’s Fitbit to get additional damages, by claiming that as a result of a car accident his client’s activity levels are lower than an average person’s.
Accordingly, the use of such data in litigation may trigger discovery, evidentiary, and even constitutional issues. It is likely that the more specialized the health information collected becomes, the more important the question of privacy will turn out to be. Another area for debate is the reliability of the devices. Attorneys will have to take into account the ease of manipulation among other factors that may affect the accuracy of the information. Constitutional questions regarding the Fourth, Fifth and Sixth Amendments could also be a topic for deliberation.
Also, if the information gathered by these devices is likened to a medical record it would open the proverbial “can of worms,” and determining whether the data is subject to a federal or state regulatory framework is likely to catapult the topic from the courtroom to the congressional floor.
As this topic inches its way to the forefront of legal discourse, attorneys ought to be cognizant of their ethical obligation to remain competent by staying abreast of changes in the law, which include knowing the benefits and risks associated with technology. We will stay tuned to find out how this topic unfolds.
