Using Cell Phone Records As Evidence
Discovery of Cell Phone Records
In the era of the smartphone, the discovery of cell phone records by defendants seeking to pin responsibility on injured plaintiffs is becoming more and more common. In Antico v. Sindt Trucking, Inc., 39 Fla. Law Weekly D2149 (Fla. 1st DCA October 13, 2014), the court balanced the plaintiff’s right to privacy in Article 1, Section 23 of the Florida Constitution against the defendant’s right to demonstrate the alleged comparative negligence of the plaintiff, by using a phone in some way at the time of the accident.
In Antico, the trial judge entered an order allowing the inspection, trying to balance the defendant’s discovery rights against the plaintiff’s privacy interest. Defendant asserted that the information was relevant because the cell phone records show that the decedent had been texting in the minutes preceding the accident. There was also testimony from two witnesses that the decedent may have been utilizing her cell phone at the time of the accident, and testimony from the trooper supporting the assertion that she was using it.
The order stated that the petitioner’s counsel could videotape the inspection which would be conducted at the defendant’s expense, and in the presence of the plaintiff’s attorney at an agreed time, place, and date.
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, and a copy for plaintiff’s counsel;
(3) Return the cell phone to plaintiff’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, etc.;
(5) Prepare a summary of the data reviewed including type of data, use of data, etc.;
(6) Provide the summary to the plaintiff’s attorney prior to the dissemination of any more specific findings. The court ordered that Plaintiff’s counsel should have ten days from the 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; and
(7) It then said, if no objection was made by the plaintiff, then the defendant’s expert could release his or her findings to the defendant’s counsel.
The appellate court found that this order did not depart from the essential requirements of law.
Notwithstanding that this particular court allowed these parameters, and notwithstanding that the parameters generally seem fair and considerate of the plaintiff’s privacy, it would seem that the “nine-hour period” is way too broad and should be challenged by future litigants. Why would what occurred nine hours before an accident have anything to do with what the plaintiff was doing at the time of the accident?
If you were involved in an accident that involved cell phone use, please don’t hesitate to contact our firm today!