Electronic Information in Personal Injury Cases

Brien Roche

There are a host of different forms of electronic information that may be useful in personal injury cases. What is set forth below is a smattering of those different forms with some tips as to how they might be better utilized.

Electronic Data Records from Cell Phones

The most likely source of data are cell phones.  Cell phone data can be described either as content data or non-content data.  The content data is the substance of the message.  The non-content data addresses the when, where and how long issues.

In attempting to collect any data you need to first decide whether or not you are looking for the content or non-content data.  

If you are looking for both, then you need to go to all of the available sources.  Those available sources are the phone itself, the carrier such as Verizon or the service such as Facebook, Instagram, etc.  The service itself typically is not going to provide much data since they will take the position that you should go to the user.

Electronic Data Records-The Phone Itself

In terms of getting information off the phone itself, the best thing to do is to have the phone examined by someone who can extract all of the data that may be on it for a designated period of time.  In most instances your search covers a limited period of time.  There are technicians who can extract this data but they need the phone itself to do so.  One of those technicians is Seltek Technology Solutions in Henrico, Virginia.  They can be found at https://www.seltekinc.com/.

There are many other such technicians available.

Rule 4:9A permits inspection of the phone.  In the case of Albertson v. Albertson, 73 Va. Cir. 94, 98 (Fairfax 2007) the court ordered the actual production of hard drives for inspection.  The same would apply to a phone.

Once you’ve got the phone then the forensic expert can extract the data from it.  Typically this extraction takes less than an hour.  To access this data the expert may need the pass code from the user.   Call, or contact us for a free consult.

Electronic Data Records By Subpoena

If you are going to attempt to obtain information from a cell phone carrier by means of subpoena then your subpoena should request:  “All documents concerning (phone number) for the time frame (state the time frame) including:

1. The name and address of the subscriber;
2. The features of the service subscribed to;
3. All outgoing calls;
4. Incoming calls;
5. All text/data usage; and
6. All text/sms, mms messages.

The information sought is both content and non-content and is sought pursuant to the attached court order (or in the alternative, a signed authorization from the subscriber).”  

In order to get this information you may need either a court order or an authorization signed by the subscriber.

In addition to subpoenas, other discovery means to be used would be interrogatories inquiring as to any phone communications at or shortly before the event.  Request for Documents also can be used to obtain the actual statements for services and then also the actual content.  

The evidentiary problems with the use of this data to some extent relate to whether the data is hearsay or non-hearsay.  If the data is content i.e., statements then it would be hearsay.  If the data is non-content then it probably is not hearsay.  Non-content would be call logs, date and time stamps and basic subscriber information.  The reason this is not hearsay is because there is no declarant.  

Electronic Data Records Through Social Media

Your cell phone or other device may also be the means of communication through all sorts of social media.  That social media may be Facebook, Tumblr, Instagram, Twitter, Google+, Snapchat or a host of others.  In order to determine the extent of someone’s social media presence, a website known as http://www.pipl.com may be a good source.

Discovery Limits

Typically in order to access an opponent’s social media communications there must be some factual predicate to establish relevancy.  That factual predicate may be set by the parties’ public disclosures of such communication.  For instance if what is publicly available on a person’s Facebook page indicates that they are talking about the particular event in question, that may be the basis for further exploration.

A focused and I believe reasonable interrogatory would be to ask the opposing party to identify all communications either through phone or through any social media referring or relating to the incident, damages as a result of the incident and to whom those communications were directed, the date of the communications and any responses to such communications.  Seeking unfettered access to a person’s phone and/or social networking communications is really no different than rummaging through that person’s desk drawers and closets in their home.  Ogden, 299 F.R.D. at 450.

Photographs

Any photos that are taken digitally will have a geographical locator associated with them. This will tell you not only where the person was when the photograph was taken but also when it was taken. That geo locator may be important in terms of showing that a person was at a particular location when they were photographed doing some activity.

Fixed cameras can be of great value.  If an incident occurs at a particular location, you need to identify whether or not there are any fixed cameras in that locale that might have recorded what happened at the date and time of your incident.

There are cars on the road today that have what I called “surround sound” cameras. These cars literally take a 360º photograph of everything that is directly impacting the car. Also they record everything that is taking place in the area where the car is located. If those cars are in the area of your incident, they may have valuable photographic information.

The location of traffic cameras at least in Virginia can be determined by going to a website http://www.511virginia.org

911 Data

For any auto crash you should immediately contact the 911 service for that locale. Get not only the text information but also the actual oral recording of the 911 call. All of that could be critical. 

Electronic Data Recorders

See the blog post on this site dealing with the black box. There are different types of data recorders on different vehicles. All of those different recorders need to be looked at.

Google Earth

Google, through a variety of means, has recorded a good bit of the earth’s surface. Authenticating these photographs is addressed in a blog post on this site entitled, “Authenticating Documents in Personal Injury Cases“.

Smart Houses

There not only are smart phones but there are smart houses. These houses may have 360º photographic surveillance. They may record entry and exits in terms of time and also photographically.

Fit Health Devices and Watches

These devices known as “Fit Bit” or by a variety of other names record certain readings about that person’s body. Also they record the location of the person at any given time.

Smart watches may also be the source of a great deal of data.  These devices may have data as to movement, distance traveled, location and also certain health information.  Fit bit collects this data if the user grants access.  

It is probably a good idea to check with the client as to their usage of any of these forms of communication.

Urgent Delivery Systems

It used to be that the urgent delivery systems were outfits such as Dominos or FedEx. Now that Amazon offers same-day delivery, there are all kinds of delivery services that are out there driving through neighborhoods. All of those services have tracking devices. At any given moment the company can determine where their driver is and when that driver will be arriving at the destination. Also this data apparently also contains information as to what the speed is of these drivers. All of that could be valuable information.

Electronic Information Personal Injury-Voluminous Records

Voluminous records may come in a number of different forms. Probably the most common form that lawyers deal with is medical records. Those medical records may have an audit trail. It tells you when anyone accessed those records, who accessed them and what change, if any, they made. 

Those records, when they are accessed by the provider are in what is called “native form”. Native form simply means the form that the provider sees when they’re making the entry. When those records are then copied and sent to someone in printed form, they are converted to PDF. They look totally different than what the provider saw. There may be instances where you need to have these documents not only in PDF but also in native form.

Within any set of records, whether medical records or otherwise, there may be drafts. Those drafts may be tentative entries into the record that may be completed at a later date. There is nothing wrong with that. You need to know however what the draft was in its original form and then how it was subsequently changed. 

Documents More than 30 Years Old

It may surprise you to hear that documents that are more than 30 years old are referred to as being ancient. Under Virginia Rule 2:803(16), statements generally acted upon as true by persons having an interest in the matter and contained in a document that has been in existence for 30 years or more are not hearsay. For instance if you have a business record of a party that is more than 30 years old, that document may not be subject to the proof as a business record. It is simply not hearsay under the rule.

Best Evidence Rule

Most of us know the best evidence rule as a rule that requires the production of the original in certain circumstances. That rule may be moot in the electronic age. With electronic information there is no original.

FOIA requests are a powerful means of obtaining information.  Another posting on this website deals with FOIA requests.

Preserving Electronic Data Records

Obtaining and saving data is now of greater importance than ever.  Virginia Code section 8.01-379.2:1 deals with spoliation of evidence.  It imposes a duty on the parties to save this type of data.  Upon a finding of prejudice the court may order certain steps to cure the prejudice.  If the court finds that one party acted recklessly or with the intent to deprive the other party of the data then the judge or jury may presume that such items were unfavorable.  The court is also allowed to dismiss the action or enter a default if necessary.

Reach Out To an Experienced Personal Injury Attorney

Call, or contact us for a free consult. Also for more info on electronic information personal injury see the Wikipedia pages. Also see the post on this site dealing with medical records issues.