Can an Attorney Subpoena Text Messages in a Personal Injury Lawsuit?

by Staff | May 17th, 2024

Phone companies keep billing and call detail records. If evidence exists that these documents contain relevant information, your lawyer can subpoena these records during the discovery phase of a personal injury lawsuit. This information could prove, for example, whether a driver sent or received text messages at the time of the accident, violating California law about texting while driving.

Federal law requires phone companies to protect their users’ data, requiring subpoenas or court orders to release the information. You can’t obtain them otherwise. Hiring an attorney from Berg Injury Lawyers to request and review these records gives you the best chance to get the evidence you need to recover a fair settlement in a personal injury lawsuit.

WHAT ARE THE PHONE PRIVACY LAWS?

Due to data brokers’ fraudulent acquisition of phone users’ data, the federal government passed several laws regulating consumer privacy protection. These laws protect records held by mobile phone companies, including usage data.

The Telephone Records and Privacy Protection Act and the Communications Act require customer approval, a subpoena, or a court order to obtain this information.

Additionally, requests must be made to the service provider before they purge the records. This means if you wait too long to file your lawsuit, these records may no longer exist.

Companies differ in how long they retain records. Federal law requires carriers to retain billing information for 18 months, and the federal government also requires companies to preserve these records while awaiting court orders.

TYPES OF PHONE RECORDS

Call detail records, or CDR, have the following information:

  • The time of the call or text
  • The receiving or sending number
  • Whether the call went to voicemail
  • Duration of the conversation
  • Location of the phone at the time

Phone bills only provide information on billable services, and call data times are not precise. Text messages and unanswered outgoing calls will not appear. This is why it’s important to request call detail records rather than billing details.

OBTAINING PHONE RECORDS

Several state court decisions have affected how to subpoena phone records in civil cases. In Ortiz v Amazon.com, a judge ordered the plaintiff to provide their cell phone records under a court order. However, the plaintiff failed to provide them since the cell phone account was under his wife’s name. The judge then ordered the plaintiff to submit their name and address for the defendant to subpoena the cell phone records from them.

Phone records and text message records must come from the service provider instead of a user’s cell phone. Depending on the phone company’s policy, these records may include the content of the messages or only the time, date, and location from which the messages were sent or received.

WHEN YOU SHOULD TALK TO AN ATTORNEY TO OBTAIN CELL PHONE RECORDS

An attorney can investigate cell phone records to help prove negligence in a crash. Your lawyer can take steps to ensure the phone company preserves the records you need and make test calls to determine the time difference between the device and the 9-1-1 reports.

To obtain the content of the text messages, your lawyer may request a different type of record if the company also keeps that information. Your attorney should request the driver’s text messages as soon as possible after the accident if they believe you need those records.

HOW CAN YOUR LAWYER USE PHONE RECORDS?

Cell phone data from the company that shows a driver sent or received a text at the time of an accident can help prove driver negligence. However, these records can’t prove the driver was holding their phone at the time to take a voice call, rather than using a hands-free function. This is where witness testimony may come in, if someone saw the other driver on their phone.

If records show the driver was texting at the time of the accident, your attorney may ask for a negligence per se jury instruction. Negligence per se means the driver’s texting constitutes negligence because it violates laws designed to keep drivers safe.

Your lawyer might make test calls to account for any deviation between CDRs and the logs from the 9-1-1 system. These discrepancies could otherwise lead a jury to conclude that the messaging didn’t occur at the time of the wreck.

WHAT ARE THE CHALLENGES OF USING CDRS?

While CDRs show incoming and outgoing text messages, they don’t prove whether the user interacted with the phone at that time. Some smartphone applications can automatically respond to incoming texts while in the car. Your personal injury lawyer can hire experts to examine this data and help discover evidence of negligence.

HIRE AN EXPERIENCED CAR CRASH LAWYER

Our car accident lawyers at Berg Injury Lawyers can help prove negligence in your case by obtaining cell phone on your behalf. We can take steps to ensure we gather proper evidence, from cell phone records and more, during the discovery phase of your case. We fight vigorously for your right to fair compensation and have represented victims of negligence since 1981. Contact us to schedule a free case review today and let us help you establish your claim by subpoenaing phone records of the at-fault party.

Originally published July 11, 2022.