Cell Phone Discovery

January 8, 2016 by Hayley Lewis Folmar, Associate Attorney

As tort liability has combined with the digital age, a party's cell phone, and its Electronically Stored Information (ESI), may operate as a goldmine of information in discovery.  A person's smart phone can create a map to the owner's thoughts and actions.  A cell phone may reveal relevant information about the owner's actions, right down to the second a social media post was made. GPS-enabled devices can reveal the location and timeline of the owner immediately preceding the accident.  A text history may reveal the intentions of the party, and applications-in-use can show what the party was focused on at the time of an accident. While cell phone records have long been accessible by subpoena to the third-party wireless provider, said records only reveal phone calls and text messages made and received. A phone's smart-data features cannot thoroughly be analyzed without an inspection of the actual device.

The 1st DCA has recently outlined a guide for the inspection of a cell phone, which dually balances the privacy rights of the individual owner of the phone. A broad interpretation of this ruling would include other smart devices, including personal tablets or wearable devices in use at the time of the subject accident.

Rule 1.280, Florida Rules of Civil Procedure, allows for the "discovery of matters that are relevant and admissible, or reasonably calculated to lead to admissible evidence, including ESI".  Fla. R. Civ. P. 1.280(b)(1)-(3). However, the Rule also addresses limitations of the discovery of ESI for the purposes of balancing the inspection against the individuals competing privacy interest. Fla. R. Civ. P. 1.2980 (d).  In the past, Courts have reversed rulings for not adequately accounting for privacy interests in the inspection of a computer hard drive and cell phone SIM card. Menke v. Broward County School Board, 916 So.2d 8 (Fla. 4th DCA 2005).

In Antico v. Sindt Trucking, 148 So.3d 163 (Fla. 1st DCA 2014), the First District held that an Order allowing inspection of a cell phone properly recognized both the Defendant's discovery rights and the privacy interests of the Plaintiff. Notably, the underlying trial court stressed the relevance of the requested information in its Order, providing there was underlying testimony that the decedent-Plaintiff had been using her cell phone in the minutes preceding the auto accident in question.

The First District affirmed the lower court's order allowing the following steps for cell phone inspection, which set strict parameters for a confidential inspection of a cell phone by an expert:

The expert must:

(1)          Install write-protect software to ensure no alteration of the phone's hard drive would be made during the inspection;

(2)          Download a copy of the cell phone's hard drive, making a master copy, a review copy, and a copy for the Petitioner's counsel;

(3)          Return the cell phone to the Petitioner's counsel immediately after copying the hard drive;

(4)          Review only the data on the hard drive for the limited period of time permitted (in Antico it was nine hours) by the Court, including call records, text message data, web searches, emails sent and received, uploads, downloads, data changes and GPS data;

(5)          Prepare a summary of the data reviewed, including type of data, use of data, date/time of data, and any other information the expert deems relevant;

(6)          Provide the summary to Petitioner's counsel prior to the dissemination of any more specific findings. Petitioner's counsel shall have ten (10) days from service to file a Motion for Protective Order or other form of objection to the release of all or a portion of the data, citing grounds for each objection.

(7)          If no objection is interposed by the Petitioner, then Respondent's expert may release his or her findings to the Respondent's counsel.

Given these strict and detailed parameters, the cost of cell phone discovery, including the hiring of an expert to analyze and disseminate, is expected to be high. Counsel for either party must also consider the variables imbedded in the use of an expert, including his or her skill, experience, and interpretation of the data reviewed. However, for the right case, the value of information may far exceed the cost.

   Hayley Lewis Folmar, Associate
  (904) 363-1950