With approximately 85% of Americans owning smartphones today, one can only imagine the incredible amount of data that gets tracked on our tiny devices. Occasionally, we hear of instances where data has been inappropriately used by apps or companies. Oftentimes litigation almost always follows these situations where individuals’ privacy is breached.
That said, the tracking mechanisms that yield all this cell phone data have been found to be extremely useful in automobile accidents. There are many different ways in which this data can help you and your Tulsa personal injury lawyer in court.
Is there a law governing cell phone data retrieval?
Since there is a fine line between privacy and breaching it, the government must ensure that there are laws in place protecting data. All cell phones are subject to inspection per the Federal Rule of Civil Procedure 34, which states that all types of information stored, like sound recordings, photos, charts, and drawings, can be requested. Even though a governing rule is in place, not all pieces of information that can be retrieved from a cell phone are required in court.
Courts realize that an opposing party may sometimes be interested to get more data than needed to help their case. An amendment to this rule states that there should not be any unnecessary intrusiveness while inspecting a cell phone, a measure implemented in an attempt to ensure some confidentiality is maintained.
How are cell phones handled after an accident?
Depending on the case specifics, your attorney (or the opposing party) may request to immediately preserve your cell phone. Especially for an automobile accident where there may be a claim of distracted driving or speeding, a forensic analysis may need to be completed right away. The faster they do so, the lower the risk of losing valuable data. Although not very common, there may be unintentional or intentional mishandling of the cell phone data from the opposing party. This leads to critical information being destroyed or possibly altered to make their situation look better.
The phone must also be isolated from overall network connectivity. If the device receives any kind of new information, the other data from the accident could end up being written over or corrupted. As time passes, data synchronization may kick out or contaminate older data to replace it with new information. Many different kinds of applications, especially those that track location by GPS, can alter or delete data that could be crucial to a case. Depending on the type of cell phone, there may be certain periods in which messages and calls are automatically deleted. The faster a forensic analyst can extract the evidence the higher the likelihood that relevant data will not be lost.
What does a forensic analyst look for?
There are several different data points that a forensic analyst seeks out when investigating digital evidence:
- Contact information
- Date, time, and language
- Calendar information
- Call logs
- Text messages
- Photos, videos, and audio recordings
- Social media
- Browser history
- Geographic information
What is “black box” data?
In several ways, extracting data from cell phones is similar to when data is obtained from “black boxes” within vehicles. Event data recorders, or EDRs, capture approximately five seconds pre-incident and less than one second afterward. It tracks the speed at which the car was going, brake usage, movements of the steering wheel, seatbelt usage and if/when air bags deployed.
In commercial trucks, some black boxes may be continuously recording, while others respond only to sudden braking or acceleration. In truck accidents, the trucking company may sometimes be unwilling to hand over the black box information – the attorneys at Biby Law immediately send out preservation letters at the onset of every truck collision case to ensure the data on the 18-wheeler is either turned over or preserved so that it can be turned over once litigation ensues.
Why does the defense want my cell phone data?
In the same way that your attorney can retrieve your data to help your case, the opposing team’s attorney will also want it to attempt to help the defendant. They will try to find any kind of data from your cell phone to weaken your case. For example, even if their client is found to be at fault for a collision by an investigating office, an opposing attorney could use a record of a call just prior to a collision to try and cause a liability dispute. Though the call may have had absolutely nothing to do with the actual incident, the attorney may claim that you were distracted. Before answering any kind of questions from the other attorney or any insurance companies, be sure to always consult with your experienced lawyer first.
An automobile accident can leave you with many different types of injuries and financial burdens. The negligent actions of another person can leave you in a world of pain, confusion, and grief. Whether or not we have relevant and useful cell phone data to extract, our experienced attorneys will work with you every step of the way to ensure you have the best chance at receiving the best possible outcome. They will make sure all your questions and concerns are answered. Get in touch with one of our lawyers by calling Biby Law Firm or submitting our contact form for a free, no-obligation consultation today.
Jacob Biby has spent his legal career helping folks just like you get the resources they need after an injury. He completed his undergraduate degree at Oklahoma State University and earned his Juris Doctorate from the University of Tulsa in 2008. Jacob is licensed to practice in all Oklahoma state and federal courts, and has limited his career to representing individuals and families who were injured by the negligence of other people or corporations. Learn more about Jacob Biby.