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THE CASE STUDY BELOW HIGHLIGHTS THE PROBLEMS WITH USING CALL DETAIL RECORDS.

The Accident

In the summer of 2021, a semi-truck collided with a passenger vehicle on a highway in upstate New York. The motorist was killed instantly, and their spouse in the passenger seat survived but had one of their legs amputated. The truck driver was unharmed.  

The couple had been driving for over five hours at night, and initially, the motorist’s fatigue caused him to be unattentive at the wheel. However, the truck driver had taken a left turn into oncoming traffic, and the attorneys hired by the surviving spouse had a hypothesis that the truck driver had been distracted by their cell phone. Other than calling 911 after the accident, the trucker denied using his phone on the day of the crash. The accident details did not bode well for a positive outcome for a lawsuit.

The Background

New York State Vehicle and Traffic Laws were the first in the country to ban hand-held cell phone use while driving in 2001. As technology improved and the use of cell phones became prevalent, additional legislation was enacted in 2009 prohibiting texting while driving. This section broadly bans the use of portable electronic devices while driving.

The following two sections in New York’s Vehicle and Traffic Law (VTL) discuss the use of electronics while driving:

  • – VTL 1225(c): Use of mobile telephones.
  • – VTL 1225(d): Use of portable electronic devices.

Generally speaking, VTL 1225(c) prohibits drivers from engaging in phone calls while operating a vehicle. In addition, VTL 1225(d) bars the use of portable electronic devices while driving. While this law directly applies to texting while driving, it also implies using GPS systems, email, and other applications on mobile devices.

The attorneys representing the surviving spouse were looking to leverage these two sections but needed to determine if their hypothesis was correct.

The Wrong Data

The attorneys filed a subpoena to obtain the truck driver’s call detail records (CDRfrom their cell phone carrier, Verizon.

Three (3) weeks later, the call detailed records were produced to the plaintiff’s attorneys. The carrier records showed that on the day of the accident, the truck driver made two phone calls around the time of the accident: One call 17-minute before getting behind the wheel and starting their logged route and a second call to 911 four minutes after the police reported time of the accident. The records also included the driver’s SMS text messages that were sent and received. None of the messages occurred during the trucker’s logged route or at the time of the accident. 

Undeterred, the attorneys decided to dive deeper and conducted some research. They learned that the majority of functions and applications on a cell phone are not included in call detail records. These include:

  • – Pick up their phone to look at a notifications
  • – Unlock the phone with FaceID
  • – Follow directions on map services
  • – Sharing on Facebook
  • – Sending or reading emails
  • – Browse the internet
  • – Commenting on Insagram
  • – Watching a TikTok video
  • – Plugging in the phone to charge
  • – Take photos or videos
  • – Changing songs on music apps

To support their case and their client, the attorneys reached out to 4Discovery. First, the attorneys wanted to determine if their hypothesis that the truck driver was using their cell phone was accurate.

The Pivot

Working with 4Discovery’s digital forensic experts, the attorneys came up with a compelling story for why the truck driver’s cell phone activity needed to be examined. The outcome was drafting a cell phone collection protocol. The protocol outlined the collection process for the truck driver’s phone, the analysis to be done on the data, and what would be produced for both parties. Next, the attorneys presented this protocol to the court and opposing attorneys. Finally, it was ratified and agreed upon.

The Right Data

Preserving a full forensic image of the truck driver’s cell phone provided additional insight into the driver’s activities at the time of the collision. One minute prior to the collision, the truck driver received a Facebook notification that popped up on their locked iPhone 8. Receiving a notification was a user opt-in setting that the driver selected in the settings of their Facebook app. Anytime they received a message or were mentioned on Facebook or tagged in a picture, the notification would pop up on the phone’s lock screen. 

Two seconds after the notification, the driver picked up their iPhone 8 and unlocked it using the face ID feature. This biometric setting is available on most iPhone and Android phones that unlock the device using a person’s face instead of manually entering a passcode. To perform this action, the truck driver would have needed to have the phone held up to their face so that the camera could scan and recognize their facial features to unlock the phone. 

The notification and unlock information from cell phone carriers are unavailable in the CDR (call detail records). 

Additional data on the phone demonstrated a pattern of the truck driver checking their Facebook account. A timeline showed that the truck driver had consistently accessed Facebook on their cell phone while driving their route. This included logging into their Facebook account 12 minutes before the accident. 

With their hypothesis confirmed, the attorneys had 4Discovery draft an affidavit of their analysis.

The Outcome

After submitting the affidavit, the opposing attorneys presented it to their clients, the trucking company, and the truck driver.

Upon the advice of counsel, the trucking company chose not to see the case go before a jury. Instead, they agreed to settlement terms and resolved the case one month before the scheduled jury trial.

The Recommendation

The attorneys and their client reached a successful conclusion. However, the length of the case could have been shortened by taking simple steps from the onset:

  • – Don’t rely on call detail records (CDR)
  • – Understand what cell phone data will support the matter
  • – Develop a compelling story and protocol

The next time you have a matter involving cell phone activity, please don’t hesitate to reach out.