Private Cell Phone Data May be Discoverable in Litigation

In disputed injury cases, getting evidence that may be difficult to obtain can be the difference between winning and losing. When we think of evidence, we often think of witnesses and medical records and maybe even video camera recordings. But we often don’t think of cell phone records as evidence in injury cases.

Cell Phones and Privacy

We often think of the information on our cell phones—texts, emails, pictures, schedules, etc.—as our private information. Because of that, we write very candid things on our phones, not expecting that the world could ever see them.

In Florida, we have a constitutional right to privacy, which is often used to protect the information on our cell phones.

But cell phone records can be a very compelling piece of evidence, especially in a disputed liability case. Contrary to what you may think, there are ways to get the confidential cell phone records and data of an opposing party—and ways that it can be used against you as well.

Recent Case Makes Cell Data Discoverable  

This was just the issue recently in a case involving the death of a woman who was hit by a truck. As a defense, the trucking company asserted the driver was distracted by her iPhone. They obtained records from the deceased’s cell phone provider, but those are generally just numbers and times of calls made.

There was evidence through witnesses that the decedent had been texting at the time of the accident. Thus, the trucking company wanted its expert to inspect the phone itself, to get access to texts, photos, or social media postings, as well as GPS data that would show where the vehicles were and how fast they were travelling when the accident occurred.

The court allowed the inspection, but only under certain conditions. Only a 9-hour window was allowed to be discovered, and the expert had to create a backup of the phone in order to preserve the data. Special software protecting the phone would have to be used, and the owner’s attorney could be present during the entire process, and the inspection could be videotaped. Once the data was gathered, the owner’s attorney had a 10-day window to file objections to protect sensitive or private data.

The court took special note that the owner’s attorney did not proffer any sensitive information that should be protected, nor did the attorney suggest there were other ways to get the information provided. In essence, the attorney agreed with the stated procedures. And, because of the pre-existing evidence that the driver was texting, this was not a “fishing expedition.”

Whenever a fact is in issue, and a party proposes reasonable parameters and safeguards as they did in this case, a court is always more likely to allow inspection. It’s important to remember that a decision like this cuts both ways. Here it was the victim’s phone that was being inspected, but there is no reason why a victim could not review a defendant’s phone records.

Obtaining difficult evidence wins difficult cases. Find an attorney that has the know how and expertise to do just that. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.


Contact Information