Attorney Thadd Llaurado Article Published in National Trial Magazine

Danger on the Road – Discovery Issues In Distracted Driving Cases

The mix of driving, texting, and other distractions often ends in tragedy—and it usually leaves a trail of electronic evidence behind.

Trial Magazine February 2013, Volume 49, No. 2

Thadd J. Llaurado

Woody Allen observed that 80 percent of life is showing up,¹ but driving a car requires much more than mere presence—it demands attention and focus. As technology allows drivers to perform multiple tasks at the same time, the stage is set for disaster. Brain scan studies show conclusively that the human brain simply cannot focus on more than one thing at a time.² Real-life examples too often prove the point with tragic results. For example, two Utah scientists were on their way to work in 2006 when a 19-year-old college student’s car drifted over the centerline, clipped their sedan, and sent it spinning into an oncoming pickup truck hauling two tons of horseshoes. The scientists were killed instantly, and a witness told the investigating officer that he had seen the student swerve several times before the accident. On the way to the hospital, the officer saw the student sending text messages. Although the student denied that he had been texting just prior to the accident, the officer’s suspicions were raised. The student’s phone records were subpoenaed and showed that the student had exchanged 11 text messages with his girlfriend in the 30 minutes prior to the crash—the last one just one minute before the 911 phone call reporting the accident.³

Text messaging is just one type of distracted driving, but it is the most dangerous because it involves manual, visual, and cognitive processes.⁴ Distracted driving can include other subsets of multitasking, such as talking on a cell phone, using a navigation system or the Internet, grooming, eating or drinking, reading, using a DVD player, listening to headphones, changing the radio station, taking prescription medications, or even talking to a passenger. In short, anything that takes a driver’s hands off the wheel, eyes off the road, or mind away from driving can be a dangerous distraction.⁵ More than 600,000 drivers are likely holding cell phones to their ears while you read this sentence.⁶

The number of wireless subscribers in the United States is 300 million and on the rise,⁷ and almost half of all American adults own smartphones.⁸ One out of every four Americans say they have texted while driving,⁹ nearly half of all American adults say they have been a passenger while the driver sent or read a text, and approximately 0.9 percent of drivers are texting at any given moment.¹⁰ One out of six adults say they have been so caught up in their conversations that they have bumped into a person or an object while walking and talking on a phone.¹¹

These startling statistics have consequences. In 2009, for example, nearly half a million people were injured as a result of distracted driving.¹² The U.S. Department of Transportation’s National Highway Traffic Safety Administration estimates that 3,000 deaths per year can be attributed to distracted driving.¹³

Distracted driving laws

Four states have laws against distracted driving generally, and 41 states specifically prohibit texting.¹⁴ Twelve states require hands-free devices and 39 states ban all cell phone use for specific drivers, such as those who are novice or who drive school buses.¹⁵

The federal government banned texting by drivers of commercial vehicles in 2010.¹⁶ States in which distracted driving constitutes an independent basis for enforcement action authorize a police officer to pull over a vehicle and issue a citation when seeing a driver use a cell phone illegally. In states with secondary enforcement statutes, officers need another reason to stop drivers, but they may issue an additional citation for the illegal cell phone use.¹⁷ No state bans all forms of cell phone use by all drivers.¹⁸Courts have held that cell phone use at the time of an accident may constitute negligence and liability.¹⁹ Where states have imposed statutory restrictions on cell phone use, courts have ruled that “the unexcused failure to observe the standard imposed by statute constitutes negligence, and any evidence, whether direct or circumstantial, indicating such a violation would be relevant.”²⁰

Even in states where a driver observes the statute, such as those requiring the use of hands-free devices, courts allow evidence of such use as a matter of common law negligence.²¹One court held that talking on a cell phone would not establish negligence as a matter of law, but it is evidence from which a jury may infer that the defendant was not paying full attention to driving.²² That is, it is evidence of negligence.Where plaintiffs have obtained cell phone records, courts may allow the records into evidence, even if the time of a phone call is a few minutes off from the time of the accident.23 One court noted that it was “mindful that all clocks are not synchronized,” and that evidence of cell phone use “was not so remote as to require its exclusion.”²⁴

Given recent state statutes that prohibit cell phone use or texting while driving, a request for a finding of negligence per se would seem warranted. However, courts have not agreed on this point.²⁵

Discovery strategies

Proving that a driver was distracted involves many of the same investigatory tools traditionally employed by trial lawyers. But there may be a clear advantage for a lawyer trying to prove that a driver was distracted because electronic evidence of the distracting activity may exist.

Counsel can seek discovery through many traditional tools including interrogatories, requests for production, or subpoenas. Such discovery requires the name of the defendant’s cell phone service provider and either an authorization or a subpoena to obtain all cell phone or texting records.

Discovery in distracted driving cases, however, is not always clear cut. In Morano v. Slattery Skanska, discovery issues arose with regard to alleged cell phone use by the defendant in an accident.²⁶ A motorcyclist saw a driver “with an object in her hand held to her head” just before her car turned in front of his motorcycle and the two vehicles collided.²⁷ The court held that the mere possession of a cell phone at the time of a collision did not entitle the plaintiff to discover the defendant’s cell phone records.²⁸ The court required evidence of “using” a cell phone before the plaintiff could obtain discovery of the records.²⁹ But this can be problematic. A cell phone can be used with a hands-free device or via a speaker at or below the dashboard. Requiring proof of “using” the cellular device before discovery could be difficult if no eyewitness sees a defendant’s cell phone at his or her ear.

The court in Morano also held that the plaintiff’s use of a subpoena duces tecum, served directly on the cell phone provider, infringed on the defendant’s privacy pursuant to the Electronic Communications Privacy Act of 1986, the Telecommunications Act of 1996, and the Telephone Records and Privacy Protection Act of 2006. The court held that “a subpoena duces tecum should not be used in lieu of discovery” and that a plaintiff should seek compliance by requesting authorizations from the defendant and then sending the authorization to the cell phone provider.³⁰ A defendant who wishes to challenge a plaintiff’s discovery request may move the court for a protective order.³¹ Morano poses some challenges, but they can be overcome by careful use of written discovery of the defendant. Plaintiff attorneys should also investigate whether any witnesses saw any indication that a cell phone or other electronic device was in use at the time of the accident.³²

In a subsequent case, Detraglia v. Grant, the court allowed discovery of records for three cell phones and the air card for a laptop computer (all of which were in a driver’s vehicle at the time of the accident) because of conflicting evidence as to whether the driver was using any of the devices at the time of the accident. The driver testified that he never used his computer while driving, but a tow truck driver submitted an affidavit “stating that he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on, indicating recent use.” The court conducted an in camera review of the records and ruled it would provide “the parties only relevant information redacted to protect defendants’ privacy interests.”³³

Other considerations

In Southeastern Mechanical Services v. Brody, the court addressed the spoliation of text messages from devices.³⁴ The plaintiff sought the production of data stored directly on the defendants’ devices, and expert witnesses testified regarding four possible ways data could be wiped from the devices, only one of which could be accidental. The court concluded that where several BlackBerry devices had been wiped clean of data, a finding of bad faith was an appropriate inference.³⁵

As the prevalence of cell phone use in cars increases, more states are adopting limitations on that use. But even in jurisdictions with no laws restricting cell phone use while driving, evidence of cell phone use is generally admissible. In any distracted driving case, discovery of electronic evidence follows the same rules as other evidence, but it may be the crucial link to proving your case.

Thadd J. Llaurado is a partner with Murphy & Prachthauser in Milwaukee, and he would like to thank Tea Norfolk and M. Josef Zimmermann for their assistance with this article. He can be reached at tllaurado@murphyprachthauser.com.

Notes

1. Fred R. Shapiro, The Yale Book of Quotations 41 (Yale U. Press 2006).
2. Marcel A. Just et al., A Decrease in Brain Activation Associated With Driving When Listening to Someone Speak, Ctr. for Cognitive Brain Imaging, Dept. of Psych., Carnegie Mellon Univ. (Feb. 19, 2008), www.distraction.gov/research/PDF-Files/carnegie-mellon.pdf.
3. Matt Richtel, Utah Gets Tough With Texting Drivers, N.Y. Times (Aug. 28, 2009), www.nytimes.com/2009/08/29/technology/29distracted.html.
4. Natl. Hwy. Traffic Safety Admin., What Is Distracted Driving?, http://www.distraction.gov/stats-research-laws/facts-and-statistics.html
   
5. This article focuses primarily on cell phone use, but other forms of distraction have also been the subject of discovery. In Pierce v. U.S., 2007 WL 1577762 (W.D. Wash. May 30, 2007), the plaintiffs asserted that the driver may have been distracted by the hamburger found on the floor of his car after the accident. The plaintiffs presented the testimony of an accident reconstruction expert, who relied on the medical examiner’s report that the driver’s stomach contained partially digested food, and on a witness who saw the car begin to drift without seeing the driver in the car. The plaintiffs further relied on a study issued by the National Highway Traffic Safety Administration, which reported that dining is a distraction involved in two out of every 15 rear-end collisions. See also Lamb v. Stroud, 1990 WL 130815 (Tenn. App. Sept. 12, 1990).
6. Natl. Hwy. Traffic Safety Admin., Traffic Safety Facts Research Note: Driver Electronic Device Use in 2010 (Dec. 2011), www-nrd.nhtsa.dot.gov/Pubs/811517.pdf.
7. Natl. Hwy. Traffic Safety Admin., Blueprint for Ending Distracted Driving, www.distraction.gov/content/dot-action/index.html.
8. Lee Rainie, Smartphone Ownership Update: September 2012, www.pewinternet.org/Reports/2012/Smartphone-Update-Sept-2012.aspx.
9. Mary Madden & Lee Rainie, Adults and Cell Phone Distractions, www.pewinternet.org/Reports/2010/Cell-Phone-Distractions.aspx.
10. Natl. Hwy. Traffic Safety Admin., supra n. 6.
11. Madden & Rainie, supra n. 9. Discovery in cases involving pedestrian distraction caused by a cell phone, while beyond the scope of this article, raises comparable issues of contributory and comparative negligence.
12. Natl. Hwy. Traffic Safety Admin., Traffic Safety Facts Research Note: Distracted Driving 2009 (Sept. 2010), www.distraction.gov/research/PDF-Files/Distracted-Driving-2009.pdf; www.distraction.gov/content/get-the-facts/faq.html; www.distraction.gov/content/get-the-facts/facts-and-statistics.html.
13. Natl. Hwy. Traffic Safety Admin., supra n. 7, at 3.
14. The four states with general laws relating to distracted driving are Idaho, Maine, South Carolina, and Utah. Four states have no distracted driving laws: Hawaii, Florida, Montana, and South Dakota. Natl. Hwy. Traffic Safety Admin., State Laws, www.distraction.gov/content/get-the-facts/state-laws.html.
15. Id.
16. Press Release, U.S. Dept. of Transp., U.S. Transportation Secretary Ray LaHood Announces Federal Ban on Texting for Commercial Truck Drivers (Jan. 26, 2010), www.distraction.gov/content/press-release/2010/01-26.html.
17. Thomas E. Sherzan, ‘Talk 2 U L8R’: Why Cell Phones and Driving Have ‘G2G’: An Analysis of the Dangers of Cell Phone Use While Driving, 59 Drake L. Rev. 217 (Fall 2010).
18. Govs. Hwy. Safety Assn., Cell Phone and Texting Laws (Nov. 2012), www.ghsa.org/html/stateinfo/laws/cellphone_laws.html.
19. Williams v. Cingular Wireless, 809 N.E.2d 473, 478 (Ind. App. 3d Dist. 2004) (“A cellular phone does not cause a driver to wreck a car. Rather, it is the driver’s inattention while using the phone that may cause an accident.”); O’Toole v. Carr, 786 A.2d 121 (N.J. Super. App. Div. 2001), aff’d, 815 A.2d 471 (N.J. 2003) (noting that cell phone use at the time of an accident may constitute negligence giving rise to liability); Commonwealth v. McGrath, 805 N.E.2d 508, 514 (Mass. App. 2004) (permitting a prosecutor to introduce evidence that a defendant had a cell phone in his hand upon leaving his car and inviting the jury to infer his cell phone use at the time of a vehicular homicide); Butts v. U.S., 822 A.2d 407, 419 (D.C. App. 2003) (telephone records showing that appellant was talking on a cell phone at the time of an accident were relevant to prove negligence).
20. Morano v. Slattery Skanska, Inc., 846 N.Y.S.2d 881 (N.Y. Sup. Ct. 2007).
21. Mangione v. Jacobs, 950 N.Y.S.2d 457, 461 (N.Y. Sup. Ct. 2012); see also Belluscio v. Tuck, 2009 WL 7324046 (N.Y. Sup. filed June 30, 2009).
22. King v. Pagliarao Bro. Stone Co., 703 A.2d 1232, 1235 (D.C. 1997) (while talking on a “car phone would not establish negligence as a matter of law, it is at least some evidence from which a jury could infer that” a driver “was not devoting his full time and attention to his driving.”).
23. Scianni v. Suriano, 2007 WL 506206 (N.J. Super. App. Div. Feb. 20, 2007); Hiscott v. Peters, 754 N.E.2d 839 (Ill. App. 2d Dist. 2001), overruled on other grounds by Thornton v. Garcomo, 928 N.E.2d 804 (Ill. 2010). But see McCuish v. Jaffe, 2009 WL 3050900 (Mich. App. Sept. 24, 2009) (where a pedestrian ran into the side of a vehicle, there was no evidence of the exact time of the accident, which occurred sometime between 3:30 p.m. and 4:15 p.m., and cell phone records indicated the driver had used her phone several times between 3:49 p.m. and 4:39 p.m.).
24. Hiscott, 754 N.E.2d at 849.
25. See Williams, 809 N.E.2d at 477-78; Lowell v. Peters, 770 N.Y.S.2d 796, 799 (N.Y. App. Div. 3d Dept. 2004). But see Morgenstern v. Knight, 134 P.3d 897, 898 (Okla. Civ. App. 2006) (holding that plaintiff’s alleged use of a cell phone during the automobile accident did not constitute sufficient evidence to warrant submitting the issue of contributory negligence to the jury); Lauseng v. Zink, 2009 WL 5194514 (Mich. App. Dec. 17, 2009) (absent law prohibiting cell phone use, even if there were sufficient evidence to show defendant was talking on cell phone at the time she struck the decedent, talking on a cell phone while driving does not constitute negligence per se).
26. Morano, 846 N.Y.S.2d 881.
27. Id. at 884.
28. Id. at 888.
29. Id. Since Morano was decided, another court held that under certain circumstances even the use of a hands-free device can constitute a distraction for drivers. See Mangione, 950 N.Y.S.2d at 461.
30. Morano, 846 N.Y.S.2d at 887.
31. See Fed. R. Civ. P. 26(c).
32. See Foddrill v. Crane, 894 N.E.2d 1070 (Ind. App. 2d Dist. 2008) (where there was no evidence of inclement weather, road defects, mechanical failure, or other circumstances that would lead to a rear-end collision, and the plaintiff saw defendant driver leave his vehicle with a cell phone in his hand. The defendant claimed the phone was inoperative, but the court allowed a reasonable inference that he was using his cell phone at the time of the accident and was distracted by it).
33. Detraglia v. Grant, 890 N.Y.S.2d 696 (N.Y. App. Div. 3d Dept. 2009).
34. S.E. Mech. Serv. v. Brody, 657 F. Supp. 2d 1293 (M.D. Fla. 2009).
35. Id. at 1300. In addition to call records available through wireless service providers, data can be stored directly on a device. Another unique consideration not covered in Brody or this article is that of disposable cell phones. Although a user of a disposable cell phone does not have a normal service plan, the wireless provider of that disposable phone may still have records of phone activity.

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