While Missouri courts do not have an official e-discovery rule, Rule 58.01 of the Missouri Rules of Civil Procedure allows parties in a civil lawsuit to request the production of documents that are relevant to the lawsuit, which includes electronic records (commonly referred to as electronically stored information or “ESI”).

Courts around the country are struggling with the privacy concerns raised with new technology and ESI. Recent decisions have begun to address issues about whether your Facebook posts are discoverable and what steps law enforcement need to take to search your cell phone.

Technology can make our lives more productive. It should come as no surprise that wearable technology or a fitness tracker, such as the Samsung Gear, Apple iWatch, Google Glass, Jawbone UP, FitBit and Nike Fit are the hot items on many people’s Christmas shopping lists this year. These technology items perform some serious functions in helping to store personal information and track health and lifestyle activities. This ESI may be discoverable in litigation, raising yet more questions about personal privacy and what records are discoverable in a lawsuit.

Say, for example, you are involved in a personal injury suit. Your claim is that your body has been damaged and you are no longer able to exercise or enjoy activities as before. Opposing counsel notices that you are wearing a fitness tracker. Currently, these wearable devices can track your heart rate, food eaten, steps taken, and workout regimens. These devices can also store locations of walking, jogging or running routes or other places you have visited via their GPS feature. Would the information on your fitness tracker support your claim or blow it out of the water? In the past, defense counsel might have need to have surveillance performed to obtain evidence to refute your claims. Now, that evidence may be available by a simple download from your fitness tracker or its app in response to a request for production.

Sound far fetched? It is already occurring in one personal injury lawsuit in Canada. If the iWatch increases the wearable market by the seven times currently predicted, you can bet that this type of evidence request will be coming to a Missouri courtroom near you very quickly.