News flash: you are in a very small minority if you do not have a cell phone. Whether a “basic” flip phone or the latest and greatest “smart” phone, most people have one form or another on them at almost all times. These devices can also be invaluable sources of information for discovery purposes. If a factual basis exists to argue a person involved in an event was using or distracted by their cell phone, courts have allowed discovery on that point.
Antico v. Sindt Trucking, Inc.[1] was a wrongful death claim where a commercial truck and car collided, killing the car’s driver. The trucker denied liability, arguing the car’s driver had been distracted by her iPhone at the time. The trucker requested the data from the cellphone but the estate refused to turn it over. While the trucker “received some calling and texting records from the decedent’s wireless provider, other cellphone data was not disclosed, such as use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident.”[2] The trucker moved to compel a scan of the iPhone itself, the estate opposed arguing constitutional privacy rights.
The inspection was granted, but recognized both the trucker’s interest in the iPhone for discovery purposes and the estate’s privacy interest. The court
From: Felipe Contreras 3.12-stable review patch. If anyone has any objections, please let me know. Currently drivers can only be prosecuted for using a mobile phone behind the wheel if they're performing an 'interactive communication', such as making handheld calls, texting, or using the internet.
stressed the relevance of the requested information, citing cell phone records showing that the decedent had been texting in the minutes preceding the accident; testimony from two witnesses indicating that the decedent may have been utilizing her cell phone at the time of the accident; and testimony from the responding troopers supporting the assertion that the decedent was using her cell phone when the accident occurred.[3]
The order was quite detailed. I consider it a bit heavy handed actually.
It provided that the expert could examine the cellphone, at Respondents’ expense, in the presence of Petitioner’s counsel at an agreed date, place, and time. Petitioner’s counsel could also video the inspection. The order enumerated the following steps to be followed by the expert:
(1) Install write-protect software to ensure no alteration of the phone’s hard drive would be made during the inspection;
(2) Download a copy of the cell phone’s hard drive, making a master copy, a review copy, a copy for Petitioner’s counsel;
(3) Return the cell phone to Petitioner’s counsel immediately after copying the hard drive;
(4) Review only the data on the hard drive for the nine-hour period permitted by the Court (including call records, text messages, web searches, emails sent and received, uploads, downloads, data changes and GPS data);
(5) Prepare a summary of the data reviewed, including type of data, use of data, date/time of data, and any other information s/he deems relevant.
(6) Provide the summary to Petitioner’s counsel prior to the dissemination of any more specific findings. Petitioner’s counsel shall have ten (10) days from service to file a Motion for Protective Order or other form of objection to the release of all or a portion of the data, citing grounds for each objection.
(7) If no objection is interposed by the Petitioner, then Respondents’ expert may release his or her findings to Respondents’ counsel.
The order suggested that the hard drive copying process would take between ten minutes and two hours. And only if Petitioner’s counsel did not object could the expert make findings available to Respondents’ counsel.[4]
The estate petitioned for a writ to block the inspection, arguing the inspection was a fishing expedition.
The trial court didn’t allow the inspection simply because Respondents made assertions that decedent was on her cellphone, or because the decedent happened to possess a cellphone in her car. This case does not involve an unanchored fishing expedition as Petitioner alleges. Rather, Respondents supported their motion to inspect the cellphone with specific evidence. Respondents cited cell phone records showing that the decedent was texting just before the accident; two witnesses indicated that the decedent may have used her cell phone at the time of the accident; and troopers responding to the accident lent support to the conclusion that the decedent was using her cell phone when the accident occurred.[5]
In the end, the court concluded the order was sufficiently tailored to balance the competing interests and allowed the inspection to proceed.
Morano v. Slattery Skanska Inc.[6] also addressed this general topic. Defendant car driver was making a right turn into her own driveway when the plaintiff motorcyclist somehow collided with her. At plaintiff’s deposition “there was no testimony whatsoever by plaintiff regarding defendant Katoni’s alleged use of a cell phone at the time of the accident.”[7] When defendant was deposed, she admitted “she had in her possession a cellular phone, with Verizon being the carrier, she categorically denied using it at the time the collision occurred.”[8] Plaintiff next sent a subpoena to Verizon for the driver’s phone records for the day of and after the accident. The defendant moved to quash. It was only then that Plaintiff alleged he saw the driver using a cell phone before the accident.
Mobile Phones Wikipedia
The dispute was reduced to a decision about whether the records were discoverable. “[T]he mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s cell phone records, since such a discovery request would amount to nothing more than a fishing expedition.”[9] The plaintiff’s affidavit was apparently just barely enough. He was permitted to obtain
only to that portion of defendant Katoni’s Verizon cell phone records, which would disclose calls transmitted or received by her on April 1, 2006, limited to the estimated time of the subject accident. Such limited disclosure, obtained via in camera review, would protect privacy, while revealing any calls made or received within the estimated time zone in close proximity to the accident, and would be relevant to the issue of negligence.[10]
Drivers Esi Mobile Phones Safelink
Both of these opinions focus on similar elements. 1) Some factual indication that the opposing party was using a cell phone at the time of the event; 2) a narrowly tailored request to the time of the accident. If you have that, then you may be able to get these records.
Drivers Esi Mobile Phones Handset
[1] 148 So. 3d 163 (Fla. App. 2014).
[2]Id. at 164.
[3]Id. at 164-65.
[4]Id. at 165.
[5]Id. at 166-67.
[6] 846 N.Y.S.2d 881 (N.Y. Sup. 2007).
[7]Id. at 883.
[8]Id.
[9]Id. at 888.
[10]Id.