Proving The Defendant Was Texting While Driving

August 24, 2012

Txting Drvng Reaper.jpgWith so many accidents caused by distracted driving, it's a fair bet that, in any given accident, the negligent driver was on a handheld phone or handling e-mail or text messages while driving. In many cases, that fact is not important: if the defendant admits liability, or if liability is clear (for example, the garden variety rear-end collision).

In other cases, though, proving that the defendant was distracted can go a long way toward showing that their version of events is likely wrong (if not an outright lie). Yesterday I deposed a representative of AT&T to find out everything I could about the phone usage of an automobile accident defendant at the time of the accident.

These types of depositions take a lot of legwork. When I get the transcript, I'll post it on the website. If you have a case where you suspect illegal cell phone use at the time of an accident, here are some things to think about:


  • Even before a lawsuit is filed, immediately send a preservation letter to save any cell phone owned by the defendant, and the content of any text messages on the phone at the time of the accident
  • Find out what cell phone carriers and cell phone numbers the defendant had at the time of the collision
  • Either get the defendant to sign an authorization, or send a subpoena requesting all cell phone records (including voice, data and text messaging records) for the time of the collision
  • Once you have those records, work with the cellphone carrier to set up a corporate designee deposition to decipher what the records mean--they typically come to you in spreadsheet form with various codes and abbreviations
  • During the deposition, identify the meaning of every column and term generically
  • During the deposition, figure out if you can verify whether there was any use of the phone during the collision

AT&T, for example, does not keep records of the content of text messages--they can only tell what time those messages were sent or received (they can't tell what time the messages were read). In a catastrophic injury case, a forensic computer specialist may be able to dissect the phone to determine that type of information. Your best bet is showing a string of text messages back and forth near the time of the accident. Even better is a phone call log. Data usage (Apps, Facebook, internet usage) from a smartphone can be more difficult--many programs run in the background, so the fact that a phone is uploading or downloading data does not mean that someone is actively using the phone.

Finally, be sure to find out in discovery whether the defendant gets e-mail on his phone. If so, request a copy of all e-mail messages sent and received near the time of the accident.

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