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July 31, 2013

Demand for the Preservation of Electronic Evidence: A Valuable Tool for Accessing Interactive Health Data in Tort Cases

Interactive health data promises to yield a hoard of evidentiary gems for defense counsel to use against plaintiffs in personal injury cases. Proactive counsel seeking to use this data should consider serving a demand for the preservation of electronic evidence early in the litigation to protect their client's ability to inspect and use this valuable data.

The term "interactive health data" refers to data generated from wireless health monitoring sensors and gadgets, smartphone apps, and personal health records. A new generation of popular activity monitors, including wristbands made by Nike, Fitbit, and Jawbone suggest that this type of data will soon become ubiquitous. Wireless health monitoring technologies track steps taken, miles ran, minutes slept, weights lifted, and other activities, and then transmit this data to computer/internet data bases (the Cloud). Some of these activity monitors have a social media component where people can share/compare their activities among friends and others. Further examples of interactive health technologies include heart rate sensors that provide cardiologists with a continuous, real time, EEG and glucose monitors that record blood sugar levels around the clock to allow healthcare professionals to keep an eye on patients when not in the doctor's office.

Personal health records ("PHR") is another type of interactive technology that permits patients to obtain, monitor and manage their health data. A PHR can include a patient's entire medical history from medical providers, but also permits users to input their own data (perhaps information about their diet), data from other interactive health technologies, and the patient's written notes regarding their medical treatment. In this way, PHRs can become akin to an individualized healthcare journal. One PHR that has with high rates of use is the "blue button" system adopted by the Veterans Affairs healthcare system (VA). The VA provides its patients with the ability to download nearly all of their medical records via the internet. The patient can then incorporate this data into personal health monitoring software, such as Microsoft HealthVault. In the coming years, and as mandated by federal regulation, healthcare providers will need to provide patients with a means to access their medical records.

Strategy to Obtain Interactive Health Data

Lawyers seeking to use interactive health data in litigation should understand that in New York, such data is likely available only when the request for such data is narrowly tailored. Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dep't 2012). General demands and broad authorizations seeking information from social media accounts – Facebook, Twitter"”"amounts to nothing more than a request for permission to conduct a fishing expedition" and will be denied. Tapp v. NY Urban Dev. Corp., 102 A.D.3d 620, 621 (1st Dep't 2013), Fawcett v. Altieri, 38 Misc. 3d 1022, 1028 (Sup. Ct. Richmond County 2013).

In most cases, the way to develop "a narrowly-tailored discovery request seeking only that social-media based information that relates to the claimed injuries arising from the accident" is through depositions. Carr v. Bovis Lend Lease, 2012 N.Y. Misc. 6095 (Sup Ct New York County 2012). Lawyers seeking to find this data can question a plaintiff about his use of interactive health technologies. Inquiries about the plaintiff's health care insurance plan could reveal the existence of interactive health data since some plans incentivize participants for using activity sensors. In addition, the plaintiff may participate in sports where coaches may use activity-monitoring devices, or the plaintiff may train or compete in athletic activities and share results via social media.

After counsel establishes a factual predicate to obtain interactive health data, the next step is to serve follow up demands and/or authorizations. Since service of these authorizations could occur years after the creation of this data, lawyers will want to make sure to serve a demand for the preservation of electronic evidence early in the case. Carr, 2012 N.Y. Misc LEXIS at *2. A demand for the preservation of data is a tool that places the plaintiff on notice that the destruction of interactive health data would carry the risk of a spoliation charge. "[S]poliation claims involving electronically stored evidence apply to the potential destruction of evidence in anticipation of litigation and when a party is on notice of a credible probability that it will become involved in litigation." Id. Considering that the plaintiff has some control over interactive health data and potentially can erase it, and that interactive health data is likely available to the defense only after depositions, the demand for the preservation of electronic evidence is a key tool to access this data. In Carr v. Bovis Lend Lease, the defendant served the preservation demand after depositions, but there is no reason why a proactive litigant would not to serve such demand earlier in the case.

As we venture further into the era of big data, electronic discovery will become increasingly important in tort actions. Hiscock & Barclay is closely monitoring and applying developments in electronic discovery with great success on behalf of our clients. Please contact us for more information.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area at (585) 295-4424 or


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