Posted On: December 24, 2009 by Mark A. Eskenazi

Cell Phone Records: Numbers Please

New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

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