These days the average cell phone is a handheld computer, and we use it for far more than making phone calls and sending text messages. Phones are cameras, photo albums, music players and video recorders. People use them to talk with family over skype, watch movies, shop online and make dinner reservations. Cell phones can do all of those things and so much more; however, they also maintain a record of virtually everything a person does on one. A driver’s cell phone can produce a wealth of information.
A cell phone keeps records of more data than most people realize: Calendars, contacts, call logs, text logs (including content), email, and chat logs from applications on the phone, such as Facebook. The phone maintains records of the photographs, music and other data saved on it. It can keep a record of what wireless networks it has connected to, what webpages have been visited on it and what files were downloaded as a result of visiting those pages. A phone can also track where it has been based on GPS and cell tower access.
This data can be examined using hardware and software that extracts the data from a cell phone and can provide information such as when a certain file was created, when a certain chat message was sent, or when a certain file was last accessed. Even more, it can identify files, text messages, or other data that have been deleted (and sometimes when they were deleted). While the phone records for a truck driver’s cell phone might show no phone calls or text messages at the time of the crash, examining the phone itself might well reveal that he was sending a message to someone over Facebook, watching a video clip from an email, or talking to someone over skype.
Accordingly, it is vital to examine a driver’s cell phone in any case where distraction may be an issue. This includes your client’s cell phone in some circumstances (as seen above). It is also important to remember that many truckers will have multiple cell phones that may need to be examined, such as a work phone and a personal phone. The first step in conducting discovery of these phones is to include them in your preservation letter to both the motor carrier and the driver.
It is important to find an attorney who knows what data exists to be found on a truck driver’s phone and who knows the experts who can obtain it. It is also vitally important to retain an attorney quickly after the crash to help ensure that the data from the phone doesn’t get lost.