The dangers of driving while talking, texting, or using other features of a smartphone are well documented. It is common for parties in an automobile accident case to request cell phone records. What happens, though, when a party asks to inspect the actual phone?
The First District recently addressed this issue in Antico v. Sindt Trucking, Inc. This case was a wrongful death action in which the defendant moved for an expert inspection of the deceased driver’s cell phone data for the day of the accident. The plaintiff, who was the personal representative of the deceased driver, objected on privacy grounds. The trial court granted the defendant’s motion. The plaintiff then filed a petition for a writ of certiorari, seeking to have the discovery order quashed.
The order allowed the expert to examine the phone at the defense’s expense, in the presence of the plaintiff’s counsel. It set forth the specific steps to be followed. After the hard drive was copied, the expert was to review only the data for the nine-hour period allowed by the court. After reviewing the data, the expert was to prepare a summary and provide it to the plaintiff’s counsel, who would then have 10 days to move for a protective order or object to release of any of the information. If the 10 days passed without objection, the expert could release the information to the defendant.