Trial Magazine

Cell phone call and text message logs and other electronic device data can provide useful information when investigating a defendant’s version of events—especially in premises liability and motor vehicle cases. They can establish locations, develop an accurate time line, and reveal what the defendant was doing at the time.

When you suspect that such data may be relevant to your case, immediately send a preservation/spoliation letter. Keep in mind that you may receive a reciprocal letter requesting the same information from your client. Your letter should include requests to

• maintain and preserve the physical electronic devices the defendant owned at the time of the event
• maintain cell phone and data usage records
• preserve all calls, voicemails, text messages, emails, instant messages, social media messages, social media posts, internet searches, GPS data, and any other electronic communication or data.

Request data for at least the day of the event and the 24 hours before and after—but an even longer time period may be needed. The letter should state that the devices and data should not be altered, deleted, destroyed, or discarded until your computer forensic expert has had an opportunity to inspect them. Also include a request to immediately forward a copy of the letter to the defendants’ insurance company if the evidence is in its possession. Failure to preserve evidence may be considered spoliation— pursue remedies in court if that occurs. Your first discovery request should include everything from your preservation letter.

Obtaining this data is only the first step—you also need to know what to do with it. Play detective and piece together how the evidence fits your case facts. For example, in a car crash involving a suspected distracted driver, create a time line of events leading up to the crash. You will need to obtain evidence such as 911 calls, the emergency services computer-aided dispatch log, the police report, witness statements, the emergency medical services report, information about where the at-fault driver was coming from and headed to, and the at-fault driver’s social media activity (if publicly available).

Any cell phone or other electronic device data you can obtain in a case like this is valuable, but even if you only receive the call and text message history, you can still glean important facts to help construct your case. For example, in a case involving a teenage driver who struck a client, the police report and witnesses placed 100 percent of the fault on the client, who had been wearing dark clothing and darted into traffic at night on a four-lane road outside of a crosswalk.

But we believed that distracted driving was a factor in the collision. After sending a cell phone preservation letter, the insurance liability adjuster would not make the cell phone available for inspection, but it provided the call and text logs for the day of the incident. The adjuster also stated that the driver sent a text message as he was leaving his house before the crash.

After reviewing the cell phone logs, dispatch log, and police report, I conducted my own field experiment. It showed that based on where the crash occurred, how long it would have taken the driver to reach that spot from his house, the time stamp of the text message, and the time that the 911 call was made, it would not have been possible for him to have sent the text message when he left his house. Instead, the evidence showed that he sent the text while he was driving.

Taking the time to investigate what makes sense in light of the data will lead to the best outcome for your client.

Jay R. Vaughn is an attorney at Morgan & Morgan in Louisville, Ky. He can be reached at jvaughn@forthepeople.com.