“Plaintiff Calls Your iPhone 12 Pro To The Witness Stand…”

Cell phones are playing an ever-increasing role in the litigation of Colorado personal injury lawsuits. Of course they are. They go with us everywhere. Most of them log our location and make records of phone calls and text messages. We use them to track and share our activities by taking and sending photos, and of course we use them to call for help when we’ve been injured by someone who was negligent. Some people take photos of their injuries and might even keep a journal of their recovery on the phone. That means those super-helpful devices we are all glued to might store evidence that could potentially be used in in a variety of ways by both sides during a lawsuit. Here are a few of the reasons your phone could potentially be “called as a witness” in your case:

Distracted Driving:

We all know distracted driving causes crashes and injuries. We also know that’s often due to cell phone use while driving. However, getting accurate numbers on car accidents caused by distracted driving remains difficult. Few people are honest enough after a collision that results in injuries to admit they were actually dialing, texting, gaming, or posting just before the crash. That forces those of us who represent victims of distracted drivers to look for evidence of distracted driving in the records. Cell phone records from the provider, including call and text message logs, can be very useful to confirm that an at-fault driver was distracted. A forensic examination of the phone itself may in some cases further clarify whether and how the phone was in use prior to a collision. 

Photos:

If you’ve been hurt by someone who was negligent, you may have learned that they don’t always just do the right thing and pay for your losses. The at-fault driver may feel terrible and may have even apologized at the scene.  But now they’re forcing us to sue to get you compensated, the insurance company behind the wrongdoer can add insult to injury by turning your digital and online life upside down and shaking it to see if anything comes out that they might be able to use against you. Sometimes they try to do that with photos from your own cell phone. It helps to consider in advance of taking a photo that the phone does not provide context to the photos it contains. 

For example, suppose you have been stuck in bed for weeks recovering from a surgery that you had to have after you were seriously injured by someone else. One day you finally work up the stamina to go check the mail and you take a photo of yourself outside to send to your spouse, who is at work. Hey! Look at me! I’m outside in the sun! 

That’s great that you made it outside that day. But your phone may not tell any of that backstory. It’s just going to show you standing outside at a time when you truthfully told everyone you spent those two weeks stuck in bed. The photo gives the impression you didn’t. In this example it was getting outside for just a moment that made that photo worth taking. For the defense lawyers assigned to try to kill your case and leave you with nothing, it was that photo that made all the irrelevant and unrelated parts of your life worth digging through. Their goal is to claim that injured people are just lying, and your phone and its lack of context can help them do that. 

Using Auto-Delete?

Is your phone set to automatically delete data when it gets old? That could be a problem if the data it is deleting is related to your personal injury case. Courts use the word spoliation to describe destruction of information or evidence that is related to a case. If a court decides spoliation has occurred, the side that did the destroying can be sanctioned, and a jury might even be told that information or evidence was destroyed and by whom. The assumption that follows will be that whatever was deleted must have been bad for your case, even if it actually wasn’t. It may be hard to believe that a person could get in trouble if the phone just did what it has always done, but this issue recently came up in the personal injury context in a New York case, where a relative of the Plaintiff unintentionally deleted some (not even all) photos from the Plaintiff’s phone.* Those photos weren’t even deleted by the Plaintiff. Someone else did it. The court in that case decided that was spoliation and sanctioned the Plaintiff.

Location tracking:

Our phones go everywhere with us. Unless you’ve previously disabled location tracking, your phone probably contains a very detailed account of your location over time. I know I have come to peace with it. It’s just too convenient to know where the nearest lunch or coffee is. However, it’s easy to see how location tracking could certainly be of interest to either side in a variety of cases.

Text Messages:

In addition to the timing of text messages covered above, the content can be just as important to a case. If you use your personal cell phone to make statements about how you were injured, or the extent of your injuries, the other side may be able to obtain those texts and use them against you. What else do you have to do when you are stuck in a hospital or can’t go to work? Text about your injury? Text about your case? If you do, you might see those texts again being projected in a courtroom and in front of jurors.

This can also be an issue for people who own a business and use their personal cell phone for both business and work. Text messages about working or not being able to get to work after an injury could potentially become evidence later. So could texts about a lawsuit that only involves the company you work for, if you’re using your personal phone for that. Like all of this, what ends up being requested or disclosed it depends on the type of information being sought and privacy concerns, but it pays to know in advance that it’s possible.

Social Media:

As a general rule people like to post their highlights and best moments to social media. Our phones make that increasingly easy to do, and may keep additional photos and information that didn’t make the final cut for posting on social media. The result of this selective documenting and sometimes even more selective posting can be an inaccurate picture of a life that has been impacted by a serious injury.  Arguably we all know that about social media in general. But the danger of a misleading depiction of life following a serious injury can be the difference between getting justice and being left with both injuries and the financial burden they caused. For more information about just how important social media can be in a Colorado personal injury case, click here: learn more. 

But Privacy:

Overly broad and misdirected discovery requests for cell phone evidence can run afoul of privacy protections. Each case and request for information must be considered in light of both privacy rights and the rules governing discovery in Colorado injury cases.  Lawyers on both sides argue over the need for information and privacy implications on a regular basis.  Fishing expeditions are universally discouraged by Colorado courts, and the expectation is that requests must be targeted to minimize invasion of privacy. For most readers of this blog, the take-away should be that the court may very well decide which personal information on your phone gets disclosed and which does not. If you are involved in a personal injury lawsuit, your power to protect your privacy lies primarily in the decision to put something on your phone or not to. 

Your Cell Phone Can Be a Good Witness:

Of course, it’s not all bad. Cell phones can be great for documenting an injury, damage to property, statements from at-fault parties and witnesses, lost work, recovery, treatment, costs, etc. Cell phones can support your memory of events and your explanations of how an injury impacted you on a daily basis. They have been absolutely fantastic tools in the fight for government accountability and social reforms. 

The best scenario requires users to be intentional and thoughtful. This is not at all something we are currently accustomed to doing in our day-to-day cell phone use. The same is true for a whole variety of devices. It is possible to use tools like cell phones and other devices to document and present the full and accurate story of what happened to you and how it impacted your life. However, the intentional and thoughtful approach starts with simply knowing that someday the information in your phone, or phone records, or both, may be used in your Colorado personal injury case.

Being smart with both your social media and electronic devices can help you avoid problems that could result in an unfair outcome later. There are many, many more concerns for those who think their case might land in litigation. If you have a Colorado injury case that you think might be headed that direction, call me now at (720) 201-3802 to talk about how you can best prepare.

*See Luzuriaga v. FDR Servs. Corp., 2020 NY Slip Op 07185 (2d. Dep’t 2020).