I settled a case a few weeks ago where the cell phone records of the defendant driver turned out to be important. She denied being on the cell phone at the time of the accident and my client was adamant that she was on the cell phone and that was why the defendant had run the red light, because she wasn’t paying attention. Turned out that when we attempted to subpoena the defendant’s cell phone records the defendant driver’s cell phone carrier was unwilling to turn over the records without an additional court order. (Note that a subpoena is a court order, so the cell phone carrier was just delaying the inevitable- eventually we would have gotten the records). The defendant was apparently concerned about what those records might have revealed, as compared to what she testified to at her deposition. Apparently those records would have jeopardized the defendant’s denial of cell phone use, because her attorney quickly agreed to settle the case for the figure we had suggested to him after I filed a motion to obtain the cell phone records.
Obviously cell phone records can be used as both a sword and a shield in terms of vehicle accident investigation, depending on who is accused of using a cell phone. But, think of the other technologies in place that can also be used to prove or disprove liability in a car accident case. For instance…
- Text messages/e-mails.
- Video footage: This may be particularly true if the accident occurred during rush hour and the scene is captured by a traffic helicopter.
- GPS devices: Garmins, Magelllan and Onstar all record information, including the driver’s route of travel.
- Black box technology: Common on trucks, black boxes are now being equipped on private passenger motor vehicles. Black boxes are designed to record and preserve critical information at the time of an accident, just as black boxes are used in airplane crashes to recreate the events leading up to the crash. Black boxes typically record speed, braking and acceleration. The National Highway Traffic Safety Administration is looking at the possibility of requiring data recorders for all new vehicles.
- Speed Pass: Data from these devices, also discoverable via subpoena as are cell records, tell where a vehicle was on the highway and can pinpoint time of day.
- Traffic camera surveillance: This is becoming more common in cities throughout the U.S. Designed to identify drivers who run stop signs and red lights, traffic surveillance footage can also be useful in showing how a collision happened.
Pennsylvania has held out long enough in making use of a a cell phone while driving illegal. According to the website of the Governors Highway Safety Association, neighboring Pennsylvania states already have strict cell phone bans on the books.