After a car accident, an attorney may ask for the at-fault driver's cellphone records to see if the driver was on the cellphone at the time of the car accident. However, an attorney should attempt to get more information than just whether the person was on the telephone at the time of the crash.
Nowadays, the smartphone can tell attorneys (and jurors) so much more. With the data from smartphone, an expert could determine whether the phone was in use at the time of the accident even if the driver was not on a telephone call. It could determine if the driver was texting or dialing a telephone number or using an application when the car accident occurred. Some apps through GPS technology may even provide information on how fast the driver was driving and whether he or she slowed or stopped before the crash. However, is this too much "Big Brother is Watching?"
In a recent case, Antico v. Sindt Trucking, Inc., the Florida court discussed the standards that should be applied when balancing the privacy right of the smartphone user with the discovery interest of an opposing party. In this case, there was a witness who testified that the driver was texting or using the cellphone at the time of the car accident. Relying on this information, the court ordered the production of the smartphone for inspection by an expert and limited the discovery to a few hours before and after the accident. It is not clear how the Court would have ruled if there was no witness testifying that the person was on the phone at the time of the crash.
As technology develops, I suspect that this type of discovery will be more routinely done. Thus, whether you are the Plaintiff or the Defendant, it is important that you keep your use of your smartphone to a minimum when driving. Also, be 100% honest with your attorney as to whether you were using the smartphone in any capacity because the other side will be able to confirm if the person is being truthful.
Drive safely and watch out for those who don't.
Personal Injury Attorney Matthew Noyes represents those injured in car accidents, motorcycle crashes, bicycle accidents, pedestrian accidents and other types of personal injury matters. His Clearwater law firm – Perenich Caulfield Avril Noyes – is one of the oldest personal injury law firms in Pinellas County. Call Attorney Matthew Noyes now at 727-796-8282 or simply click here to schedule a free case consultation.