Follow me now Trân Jang
Background: using cell phones while driving is an inherently unsafe: Everyone knows now that it is unsafe to drink and drive, but the effects of cell phone use while driving are perhaps even more devastating, because the use of cell phones while driving is so wide -pread. According to the national Safety Council fact sheet, drivers using cell phones account for approximately 25 percent of all motor vehicle crashes annually. In fact, research has shown that driving while using a cell phone is comparable to the devastating effects that alcohol causes to the motoring public. See, A Comparison of the Cell Phone Driver and the Drunk Driver, Human Factors, Vol. 48, No. 2, Summer 2006, pp. 381-391. Sadly, 81 percent of driver have admitted to using a cell phone while driving, according to the National Safety Council fact sheet.
In bringing your motions to compel cell phone records, it is important to bring the above-mentioned documents to the attention of the judge hearing your motion. It is also crucial to let juries know of these dangers, because it will affect how the jury views the defensive's conduct, even in cases where the defense admits to liability in a rear-end collision. It is not enough to stipulate to liability and let the defensive escape accountability to the jury for the despicable nature of using a cell phone while driving. If our firm finds out that the defensive was using a cell phone, 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 there was cell phone usage, by all means, include a punitive damages allegation with the original complaint, so that you are not forced to make a motion to amend your complaint to allege punitive damages.
Do not get timed out: It is important to recognize the key defense that the defenders possess and neutralize that defense immediately: timing. It can often take 6 months or more to get cell phone records from the time that you first notice the deposition duces tecum until you have the records 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 plaintiffiff 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 the name of his cell phone carrier. He will claim to have lost his cell phone records. The cell phone carrier will throw up road blocks, too. In most cases, the judge will not let you get the cell phone records from the carrier until you have demonstrated due diligence in getting the records from the defensive 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 extremely, your motion to compel. If you do not lay the foundation, or move too quickly, the discovery judge will deny your motion to compel. 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 have to build it one layer at a time.
Also, keep in mind 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 bought earlier. Do not hand the defense an easy escape due to lack of diligence in bringing the motion to amend the complaint to allege punitive damages pursuant to Civil Code section 3294.
Start your hunt right away: Look for indications of cell phone usage on the part of the defense very early on 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 defensive was using their cell phone, your client will usually tell you, because by now most people are aware that using a cell phone while driving is despicable conduct, particularly if the defendant was not using the phone in a hands -free way. If you 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 stated 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 time of the collision in the same way that 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 defensive and were later rear-ended by the defensive, so probe your client's memory as to the first time that they saw the defensive, and think about if they saw any signs of the defensive using the cell phone.
After speaking with your client, think about other sources of information about the collision. Look at the police report, of course, to see if the reporting officer noted cell phone use. Contact all of the witnesses listed in the report to see if they noticed the defending using a cell phone. Be sure to ask your clients and the witnesses if they see the defensive appearing to speak to himself, because even hands-free driving is distracted driving, and the above-cited studies show that a driver's response time is reduced even with hands-free usage . As if they saw the defensive gesturing while driving, because of course many people will gesture with their hands while on the phone.
Even if your client and the witnesses are unable to state that they see direct evidence of cell phone usage, such as the defensive 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 defensive has no logical story to explain their odd driving behavior. For example, if your client sees the vehicle coming up on them from behind and failing to slow down, your client might not have time to focus their gaze on the driver before impact, but the fact that the driver does not slow down is a flag indicating that the driver was distracted. Weaving is of course another example of distracted driving, as is odd variations in speed. You will need all of these facts to persuade a discovery judge that there are some indicia of distracted driving before the judge will let you compel the defender's cell phone records.
File suit early: If you see flags indicated distracted driving, file suit immediately. You will need to begin the process of investigation through formal discovery immediately, because insurers are going to 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 personal assets, creating a conflict. Of course, it is exactly this kind of conflict that you want to create for the purpose of leveraging a decent settlement for your client.
If you see flags indicating distracted driving, considering serving a deposit notice on the defensive 20 days after service is affected on them, pursuant to California Code of Civil Procedure section 2025.210 (b) which provides in the pertinent part as follows:
2025.210 (b) The complaint may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defender. On motion with or without notice, the court, for good cause shown, may grant to a slipiff leave to serve a deposition notice on an earlier date.
The prevailing wisdom is that you should serve form interrogatories by mail after receiving the defensive answer, but it is exactly that kind of suggested "common sense" that you want to avoid in these cases. You want to send the defense a signal that you are different, and they should not expect "the usual" from you in any aspect of this case. It also sends the defense a signal that you are not going to permit them to enjoy their primary defensive tactic, that of stall and delay. This practice also gives you access to the defensive before the defense adjuster and defense attorney have had extra time to help the defensive form false testimony. In their haste to prepare an answer, the defense might not have time to screen the defender for cell phone usage, and so the defensive might be unwary of the need to prevaricate about his cell phone usage.
After serving the complaint and summons, fax and mail the defense adjuster to let them know that service has been effected, and let them know that you expect a timely answer to the complaint. Then serve the deposition notice, and again fax and mail the defense with a letter saying that you expect the defensive to appear on the date noticed for the deposition. Make sure that you give yourself enough time to actually get the deposit notice served. Code of Civil Procedure section 2025.270 (a) requires 10 days' notice.
The defense attorney will likely phone you to say that there is a conflict in their schedule, but you should politely and persistently insist on an early deposition for the defender. When the defense attorney requests what the rush is all about, tell them that it is the stainiff's job to move the ball, and that the defense should expect to see this face continued all through the case. Do not, of course, talk about your interest in getting discovery of cell phone usage at this point. The defense will not understand why you are pushing the case so quickly, and it will make them start to question their assumptions about what is "normal" in a case, including their "usual" evaluation of the ultimate case value.
The purloined letter, hidden in plain view: You are going to want to include a duces tecum demand with your deposit notice. In that duces tecum demand, you are going to want to ask for cell phone records. Be sure to bury the request for the cell phone records in the middle of the demand somewhere, well after the usual request for photographs and statements of the complaintiff and witnesses, etc, unless you have challenged 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 production of documents, a set of specially-prepared interrogatories, if that is needed in your case, and a request for admissions. All of these documents can be served any time that is 10 days after service of the summons on the defensive. See CCP 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 requests for admissions should certainly ask the defendant to acknowledge the facts of liability from your client's perspective, and should ask them to admit the ultimate fact that the defensive 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 on the basis of that the cell phones are not relevant in a rear-end collision. When the defensive denies liability in the request for admissions, as they inevitably will, you now have ammunition to show the discovery judge that liability is disputed, and therefore the cell phone records will go to the issue of fault.
Be thorough in deposing the defensive on how the collision happened: If you have spotted one of the flags of distracted driving, typically the defender will not admit cell phone use. You will need to first lay the foundation for the erratic driving. Be sure to begin the deposition with a benign tone toward the deponent. Do not clue them into the fact that you are going to press them later in the deposition, because they will become defensive, and they will not give you the key facts that lay the foundation for the flags of distracted driving.
The defensive will typically admit that they are rear-ended your client, if that is the case, but they will gloss over the facts leading up to the impact. You will definitely want to ask them when it was that they noticed that 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 "it sounds like your attention drifted off of the road for a little bit." Then, ask them if their windows in the car were rolled up or rolled 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 at the time of the collision. If they say no, ask them when the last time was that they used their cell phone before the collision. Ask them where they kept their cell phone. Was it attached to their belt? Was it in a purse or brief case? If there were other occupants in the defenders' vehicle, be sure to set their depositions for a time immediately following the defendant's deposition, so that the defender will be clued into the fact that his fabrications may be contradicted by other sworn testimony.
Sample duces tecum demand in commercial driving cases: You can count on the defendant to be evasive in deposition. It is not uncommon for the defendant to say that they do not remember their cell phone number or the name of their cell phone carrier! If that is the case, you will need to make sure that you have requested collision reports and bills of lading applicable to the shipment that the defensive was carrying, in case the driver's cell phone number is there. Here is some language that would cover those items:
All written collision reports prepared by defensive Donald T. Driver relating to the subject collision.
All drivers' time sheets, log books (regardless of form) involved in recording the subject tractor truck's usage and mileage by all drivers in the 72 hours prior to the subject collision.
Do not 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, and so may give up the collision report, rather than excuse 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 defenders' cell phone info: If the defensive claims in deposit to have forgotten their cell phone number or the name of their carrier, you will need to serve specifically-prepared interrogatories to elicit that information. Here are some sample questions:
State the name of all mobile telephone carriers used by defensive 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 whatever owed 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 defending Donald T. Driver had active service on the date of the subject incident.
State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers for which defending 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.
State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers provided to defendant Donald T. Driver by his employer on the date of the subject incident.
Was owed Donald T. Driver using a mobile telephone for driving directions at the time of the subject collision?
Was owed Donald T. Driver using a mobile telephone for voice communications at the time of the subject collision?
Was owed Donald T. Driver using a mobile telephone for text communications at the time of the subject collision?
Was owed Donald T. Driver using a mobile telephone for any purpose at the time of the subject collision?
When was the last time before the subject collision that defensive Donald T. Driver used a mobile telephone for any purpose?
IDENTIFY the last person that defensive Donald T. Driver spoke with mobile phone precedent the subject collision?
As used in these interrogatories, "IDENTIFY" means to provide the name, address, and a telephone number of the person to be identified.
Sample language requesting cell phone records: Below is an example of language that you can use in requesting cell phone records. Be sure to include questions that are both narrowly directed to the time of the collision, as well as questions that are broader, so that the defense will not say records which are precisely that exact. Bear in mind that the defender will typically say that they are not in the possession, custody, and control of the requested records. 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 records, because the defendant will, by that time, have answered these questions saying that they do not have possession of the records. In most cases, the only custodian of the records will be the carriers, but you have to set up the defensive by asking these questions first.
Produce all contracts for the delivery of mobile telephony service entered into between Donald T. Driver and any mobile telephony carrier which was in effect at the time of the subject collision.
Produce all contracts for the delivery of mobile telephony service entered into between defensive Donald T. Driver's employer and any mobile telephony carrier which provided service for defensive Donald T. Driver's use in effect at the time of the subject collision.
Produce any and all billing statements in the possession, custody or control of the responding defenses for mobile telephony service used by defensive 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 and all billing statements covering the period of 10:00 am through 2:00 pm on the day of the subject collision for mobile telephony service used by defensive Donald T. Driver.
You are going to have to customize the language above to fit your case. If the collision occurred at 12:00 noon, for example, you will want to go back to 10:00 am and forward to 2:00 pm to make sure that you get the data for the subject call, in case the parties or the reporting police officer got 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 defender 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 up against the discovery cut-off without your records, or without adequate time to amend your complaint to allege punitive damages.