In bringing your motions to Do Savor to compel cell phone records, it is important to get the above-referenced documents to the attention of the judge hearing your sign. It is also crucial to let juries know of these dangers because it will affect how the jury views the defendant’s conduct, even in cases where the defendant admits to liability in a rear-end collision. It is not enough to stipulate liability and let the defendant escape accountability to the jury for the despicable nature of using a cell phone while driving. Suppose our firm finds out that the defendant was using a cell phone. In that case, we will attach a punitive damages cause of action to the complaint, alleging that doing so was despicable conduct within the meaning of Civil Code section 3294 if you have clear facts showing that cell phone usage, by all means, includes a punitive damages allegation with the original complaint, you are not forced to make a motion to amend your complaint to allege punitive damages.
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Don’t get timed out: It is important to recognize the key defense that the defendants possess and neutralize that defense immediately: timing. It can often take six months or more to get cell phone records when you first notice the deposition duces tecum until you have the documents in your hands. In most aspects of a personal injury case, the defense will try to stall and delay the case until it is time for trial and discovery has closed, leaving the plaintiff with holes in her case. That is particularly true with cell phone records. The defendant will claim to have forgotten his cell phone number and carrier’s name. He will claim to have lost his cell phone records. The cell phone carrier will throw up roadblocks, too. In most cases, the judge won’t let you get the cell phone records from the page until you have demonstrated due diligence in getting the documents from the defendant himself.
As you will see in this article and the associated subsequent articles, there is a long process for seeking these documents through written depositions, written discovery, meet-and-confer letters, amended responses by the defense, followed by more meet-and-confer letters, and ultimately, your motion to compel. The discovery judge will deny your motion to compel if you don’t lay the foundation or move too quickly. So be sure to build into your discovery plan ample time to go through the whole process. Compelling cell phone records is like baking a layer cake; you must make it one layer at a time.
Also, remember that if you want to amend your complaint to allege punitive damages, California Rules of Court, Rule 3.1324, will require you to demonstrate good cause why your motion was not brought earlier. Don’t hand the defense an easy escape due to lack of diligence in bringing the motion to amend the complaint to allege punitive damages under Civil Code section 3294. Start your hunt immediately: Look for indications of cell phone usage on the defense part very early in the case. Start with the intake with your client. Include a question about cell phone usage on the part of both your client and the defense in your intake questionnaire.
If your client knows that the defendant was using their cell phone, your client will usually tell you because most people are aware that using a cell phone while driving is despicable conduct, mainly if the defendant was not using the phone in a hands-free way. If your client does not mention cell phone usage, be sure to ask your client about cell phone usage in the same way that you would screen for drunk driving because, as discussed above, cell phones are the new drunk driving and can change the entire course of the litigation, as we will see. Insurers are willing to waive liability and settle early where their insureds were using their cell phones at the collision time, as they do with drunk driving cases.
Sometimes clients will have seen the defendant on their cell phone a few minutes before the incident happened; for example, if they were passing the defendant and were later rear-ended by the defendant, so prove your client’s memory as to the first time that they saw the defendant, and think about if they saw any signs of the defendant using the cell phone. After speaking with your client, think about other sources of information about the collision. Of course, look at the police report to see if the reporting officer noted cell phone use. Contact all witnesses in the story to see if they noticed the defendant using a cell phone. Be sure to ask your clients and the witnesses if they saw the defendant appearing to speak for himself because even hands-free driving is distracted driving. The above-cited studies show that a driver’s response time is reduced even with hands-free usage as if they saw the defendant gesturing while driving because many people will gesture with their hands while on the phone.
Even if your client and the witnesses are unable to state that they saw direct evidence of cell phone usage, such as the defendant holding a cell phone to his ear or talking to no one while driving alone, it is possible to infer cell phone usage where the defendant has no logical story to explain they’re odd driving behavior. For example, suppose your client sees the vehicle approaching them from behind and fails to slow down. In that case, your client might not have time to focus on the driver before impact, but the fact that the driver doesn’t slow down indicates that the driver was distracted. Weaving is, of course, another example of distracted driving, as is odd variations in speed. You will need all these facts to persuade a discovery judge that there are some distracted driving indicators before the judge lets you compel the defendant’s cell phone records.
File suit early: If you see flags indicating distracted driving, file the case immediately. You will need to begin the investigation process through formal discovery directly because insurers will fight this discovery battle tooth and nail, as they are aware that the public is disgusted with distracted driving and that distracted driving will open up their insured’s assets, creating a conflict. Of course, this kind of war is exactly what you want to make to leverage a decent settlement for your client.
The prevailing wisdom is that you should serve form interrogatories by mail after receiving the defendant’s answer. Still, it is exactly that supposed “common sense” that you want to avoid in these cases. You want to signal the defense that you are different, and they should not expect “the usual” from you in any aspect of this case. It also signals that you will not permit them to enjoy their primary defense tactic, stalling, and delay. This practice also gives you access to the defendant before the defense adjuster, and the defense attorney has had extra time to help the defendant formulate false testimony. In their haste to prepare an answer, the defense might not have time to screen the defendant for cell phone usage, so the defendant might be unaware of the need to fabricate his cell phone usage.
The defense attorney will likely phone you to say there is a conflict in their schedule, but you should politely and persistently insist on an early deposition for the defendant. When the defense attorney asks what the rush is about, tell them it is the plaintiff’s job to move the ball and that the defense should expect to see this pace continue throughout the case. Do not, of course, talk about your interest in discovering cell phone usage at this point. The defense will not understand why you are pushing the case so quickly. It will make them question their assumptions about the “normal” in a case, including their “usual” evaluation of the ultimate case value.
The purloined letter, hidden in plain view: You will want to include a duces tecum demand with your deposition notice. Youwillo intends to ask for cell phone records in that duces tecum demand. Be sure to bury the request for the cell phone records in the middle of the market somewhere, well after the usual request for photographs and statements of the plaintiff and witnesses, etc., unless you have alleged punitive damages in your complaint, in which case the cell phone usage will be front and center. Be sure to serve along with the deposition subpoena set of form interrogatories, a standard request for the production of documents, a collection of specially prepared interrogatories, if needed in your case, and a request for admissions. All of these documents can be served at any time, isten0 days after the defendant’s summons service. See C.C.P. sections 2030.020, 2031.020, and 2033.020, respectively.
It is important to serve a standard set of requests for admissions, along with the deposition notice and the other documents. The admissions requests should certainly ask the defendant to admit the facts of liability from your client’s perspective. They should ask them to accept the ultimate truth that the defendant is at fault for causing the collision. This is particularly true if the case is a rear-ender because the defense attorney will oppose the motion to compel cell phone records because the cell phones are irrelevant in a rear-end collision. When the defendant denies liability in the request for admissions, as they inevitably will, you now have ammunition to show the discovery judge that liability is disputed. Therefore the cell phone records will go to the issue of fault.
Be thorough in deposing the defendant on how the collision happened: If you have spotted one of the flags of distracted driving, typically, the defendant will not admit cell phone use. You will need first to lay the foundation for erratic driving. Be sure to begin the deposition with a benign tone toward the deponent. Don’t tell them that you will press them later in the deposit because they will become defensive and won’t give you the key points that lay the foundation for the flags of distracted driving.
The defendant will typically admit that they rear-ended your client if that is the case, but they will gloss over the facts leading to the impact. You will want to ask them when they noticed your client was stopped and what they did to avoid the collision. You can ask them lead-in questions such as “It sounds like you were a bit distracted” or Itt sounds like ” Your attention drifted off the road for a little bit.” Then, ask them if their windows in the car were rolled up or down. Ask them if their radio was playing. Ask them if they had some trouble keeping their vehicle in their lane.
Then ask them if they were using their cell phone during the collision. If they say no, ask them when the last time was that they used their cell phone before the crash. Ask them where they kept their cell phone. Was it attached to their belt? Was it in a purse or briefcase? If there were other occupants in the defendants’ vehicle, be sure to set their depositions for a time immediately following the defendant’s affidavit so that the defendant will be clued into the fact that his fabrications might be contradicted by other sworn testimony.
Sample duces tecum demand in commercial driving cases: You can count on the defendant to be evasive in the deposition. It is common for the defendant to say that they don’t remember their cell phone number or carrier’s name! If that is the case, you must ensure that you have requested collision reports and bills of lading applicable to the shipment the defendant was carrying, in case the driver’s cell phone number is there. Here is some language that would cover those items:
All drivers’ timesheets and log books (regardless of form) recorded the subject tractor truck’s usage and mileage by all drivers 72 hours before the subject collision. Don’t assume that the defense attorney will object to the collision report prepared by the driver. It might be that the defense attorney will need to use the collision report to refresh the recollection of the driver. It might give up the collision report rather than argue that it was an attorney-client communication prepared by the driver for the insurance adjuster to prepare for litigation.
Sample language for special interrogatories seeking the defendants’ cell phone info: If the defendant claims in the deposition to have forgotten their cell phone number or the name of their carrier, you will need to serve specially prepared interrogatories to elicit that information. Here are some sample questions: State the name of all mobile telephone carriers used by defendant Donald T. Driver on the date of the subject incident, which is the subject of this lawsuit. State the name of any mobile telephone carrier with whom defendant Donald T. Driver had a contract for mobile telephone service on the date of the subject, which is the subject of this lawsuit. State the mobile telephone number(s) of any mobile telephone(s) for which defendant Donald T. Driver had active service on the subject incident date.
State the name of the mobile telephone carrier providing service for each mobile telephone number for which defendant Donald T. Driver had active service on the date of the subject incident. State the mobile telephone number(s) of any active mobile telephone(s) provided to defendant Donald T. Driver by his employer on the date of the subject incident. Please state the mobile telephone carrier’s name providing service for each mobile telephone number provided to defendant Donald T. Driver by his employer on the subject incident date.
As used in these interrogatories, “IDENTIFY” means providing the person’s name, address, and telephone number to be identified. Sample language requesting cell phone records: Below is an example of a language you can use to request cell phone records. Be sure to include questions that are both narrowly directed to the time of the collision and broader problems so that the defense won’t say they don’t have precisely that exact record. Remember that the defendant will typically say they are not in the requested documents’ possession, custody, or control. Your primary purpose in requesting these records is to demonstrate to the discovery judge that it will be necessary to compel the defendant to sign a release of documents because the defendant will, by that time, have answered these questions saying that they don’t have possession of the papers. In most cases, the only custodian of the records will be the carriers, but you have to set up the defendant by asking these questions first.
Produce all contracts for the delivery of mobile telephony service between defendant Donald T. Driver and any mobile telephony carrier which was in effect at the subject collision. Produce all arrangements for the delivery of mobile telephony service entered into between defendant Donald T. Driver’s employer and any mobile telephony carrier which assisted with defendant Donald T. Driver’s use in effect at the time of the subject collision.
Produce any billing statements in the possession, custody, or control of the responding defendants for mobile telephony service used by defendant Donald T. Driver for mobile telephony service which was in effect for the billing period which covered the date of service for May 1, 2008 [insert the date of your subject collision]. Produce any billing statements covering the period of 10:00 a.m. through 2:00 p.m. on the day of the subject crash for mobile telephony service used by defendant Donald T. Driver.
You will have to customize the language above to fit your case. If the collision happened at noon, for example, you would want to go back to 10:00 a.m. and forward to 2:00 p.m. to ensure you get the data for the subject call in case the parties or the reporting police officer contacted the time of the collision a bit off.
Conclusion:
It may be a long haul to get cell phone records in car accident litigation; start now: You can count on both the defendant and the defense attorney to fight tooth and nail to prevent you from getting your hands on the requested cell phone records. Start your hunt early, or you will find that you are right against the discovery cut-off without your documents or adequate time to amend your complaint to allege punitive damages.
