You see it all the time: The driver next to you is on the phone, paying more attention to it than to the road. We all know distracted driving is widespread, so what can you do in your crash cases to investigate it?
Your options are limited before filing suit.
Your letter of representation should say you will be investigating the driver’s phone use and include strong language for evidence preservation. This includes an admonition that no data or information from the driver’s phone or any other mobile electronic device should be deleted or altered in any way.
In your letter, request to have the driver’s phone inspected by a third-party company — an easy, nondestructive option that takes only about a day. To make it an easier pill to swallow, offer to have your client’s phone inspected and the results shared as well.
Alternatively, request a signed authorization for phone records with a promise to hand over whatever is obtained. Ask the driver to fill out the form and include a self-addressed, stamped envelope.
Because crash reports often are devoid of information about phone usage, interview witnesses and always ask your client about witnesses — not all of them stick around to give their information to the police.
Once armed with subpoena power and the ability to conduct discovery, you should use your interrogatories to ask for information about the defendant’s phone and service provider. Also, even though the answer inevitably will be “no,” ask about phone use while driving. If information is uncovered to the contrary, it creates excellent impeachment evidence.
Once you have the proper information, subpoena the phone records from the provider. Phone records often show data about voice calls, text messages and data transfers. Voice-call data usually consists of the time, date and duration of the call as well as the number called. Text-message data typically shows the date and time a text was sent or received, as well as the phone number of the sender or receiver. Data-transfer info includes the time the transfer started, the duration of the transfer and the amount of data transferred. What it doesn’t show is what the data was for or if the data was transferred in the background without any user interaction, which happens often with smartphones.
Keep in mind that the distraction from a text lasts longer than you might think. According to the National Highway Transportation Safety Administration, sending or receiving a text takes one’s eyes off the road for 5 seconds, which, “At 55 mph, that’s like driving the length of an entire football field with your eyes closed.”
Also, know that drivers can text or call in applications such as WhatsApp, which don’t leave a traditional paper trail. How can we discover these types of uses? One of the most thorough analyses is a forensic download of the phone, which can be accomplished through a request for production. While the level of detail depends on the device, newer smartphones can yield information from web browsing, geolocation, email and social-networking applications.
Another thing to inquire about is in-vehicle cameras. In-vehicle cameras are rare in passenger cars but are gaining popularity in commercial motor vehicles, and your standard discovery requests should include footage from them.
Finally, conduct discovery for habit evidence. Although I’m not aware of any cases specifically on the admissibility of habitual phone usage while driving, Missouri courts have held that “Habit evidence is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit or routine practice.” Zempel v. Slater, 182 S.W.3d 609, 617 (Mo. App. 2005) (internal citations and quotations omitted).
Practically speaking, finding someone familiar enough with the driver who is willing to testify that the driver is a habitual phone user while driving is quite difficult, but it’s worth asking. With the right testimony, evidence of habitual phone use while driving may be admissible to show the defendant was using his or her phone while driving in a particular case.
The first is relevance. Defendant drivers almost always will deny they were distracted by their phones at the time of a crash. As a result, they will claim that any discovery into distracted driving is irrelevant because their assertion cannot be questioned. Relevance must be viewed in light of the claims or defenses of the party seeking discovery.
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Mo. R. Civ. P. § 56.01(b)(1). If distracted driving is pleaded in some shape in the petition — whether it be through a failed-to-keep-a-careful-lookout allegation or separately through a request for punitive damages — it is relevant to the case and discoverable.
The second common objection by the defendant is to the production of a phone or phone data by claiming it is out of their custody and control. For example, the driver may have a company phone and claim it cannot be produced because it belongs to someone else. However, the Missouri Supreme Court has said: “Control does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.” Hancock v. Shook, 100 S.W.3d 786, 797 (Mo. 2003) (quoting Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 636-37 (D.Minn.2000)). Generally, if a party has the phone, he or she likely has enough control over it to produce it or its records in a lawsuit.
Distracted driving is a problem of epidemic proportions. Because it is so commonplace, if your practice includes car-crash cases, you should incorporate phone use into your overall strategies in these cases.
Matt Meyerkord is a personal-injury attorney and partner at Meyerkord, Russell & Hergott in Kansas City.