Background: utilizing cell telephones whereas driving is an inherently unsafe: Everyone is aware of now that it’s unsafe to drink and drive, however the results of cell phone use whereas driving are maybe much more devastating, as a result of using cell telephones whereas driving is so wide-spread. According to the a National Safety Council reality sheet, drivers utilizing cell telephones account for almost 25 % of all motorized vehicle crashes yearly. In reality, analysis has proven that driving whereas utilizing a cell phone is similar to the devastating results that alcohol causes to the motoring public. See, A Comparison of the Cell Phone Driver and the Drunk Driver, Human Factors, Vol. 48, No. 2, Summer 2006, pp. 381-391. Sadly, 81 % of driver have admitted to utilizing a cell phone whereas driving, in response to the National Safety Council reality sheet.
In bringing your motions to compel cell phone information, it is very important convey the above-referenced paperwork to the eye of the decide listening to your movement. It can also be essential to let juries know of those risks, as a result of it can have an effect on how the jury views the defendant’s conduct, even in cases the place the protection admits to legal responsibility in a rear-end collision. It just isn’t sufficient to stipulate to legal responsibility and let the defendant escape accountability to the jury for the despicable nature of utilizing a cell phone whereas driving. If our agency finds out that the defendant was utilizing a cell phone, we’ll connect a punitive damages reason behind motion to the grievance, alleging that doing so was despicable conduct throughout the which means of Civil Code part 3294. If you may have clear info exhibiting that there was cell phone utilization, by all means, embrace a punitive damages allegation with the unique grievance, so that you’re not compelled to make a movement to amend your grievance to allege punitive damages.
Don’t get timed out: It is necessary to acknowledge the important thing protection that the defendants possess and neutralize that protection instantly: timing. It can typically take 6 months or extra to get cell phone information from the time that you simply first discover the deposition duces tecum till you may have the information in your arms. In most points of a private damage case, the protection will attempt to stall and delay the case till it’s time for trial, and discovery has closed, leaving the plaintiff with holes in her case. That is especially true with cell phone information. The defendant will declare to have forgotten his cell phone quantity and the identify of his cell phone service. He will declare to have misplaced his cell phone information. The cell phone service will throw up street blocks, too. In most cases, the decide will not allow you to get the cell phone information from the service till you may have demonstrated due diligence in getting the information from the defendant himself.
As you will notice on this article and the related subsequent articles, there’s a lengthy course of for looking for these paperwork by means of written depositions, written discovery, meet-and-confer letters, amended responses by the protection, adopted by extra meet-and-confer letters, and in the end, your movement to compel. If you do not lay the inspiration, or transfer too rapidly, the invention decide will deny your movement to compel. So remember to construct into your discovery plan ample time to undergo the entire course of. Compelling cell phone information is like baking a layer cake; it’s a must to construct it one layer at a time.
Also, remember that if you wish to amend your grievance to allege punitive damages, California Rules of Court, Rule three.1324, would require you to display good trigger why your movement was not introduced earlier. Don’t hand the protection a simple escape on account of lack of diligence in bringing the movement to amend the grievance to allege punitive damages pursuant to Civil Code part 3294.
Start your hunt instantly: Look for indications of cell phone utilization on the a part of the protection very early on within the case. Start with the consumption together with your consumer. Include a query about cell phone utilization on the a part of each your consumer and the protection in your consumption questionnaire.
If your consumer is aware of that the defendant was utilizing their cell phone, your consumer will normally let you know, as a result of by now most individuals are conscious that utilizing a cell phone whereas driving is despicable conduct, notably if the defendant was not utilizing the phone in a hands-free approach. If you consumer doesn’t point out cell phone utilization, remember to ask your consumer about cell phone utilization in the identical approach that you’d display screen for drunk driving, as a result of, as talked about above, cell telephones are the brand new drunk driving and may change all the course of the litigation, as we’ll see. Insurers are keen to waive legal responsibility and settle early the place their insureds have been utilizing their cell telephones on the time of the collision in the identical approach that they do with drunk driving cases.
Sometimes shoppers can have seen the defendant on their cell phone a couple of minutes earlier than the incident occurred, for instance, in the event that they have been passing the defendant and have been later rear-ended by the defendant, so probe your consumer’s reminiscence as to the primary time that they noticed the defendant, and take into consideration in the event that they noticed any indicators of the defendant utilizing the cell phone.
After talking together with your consumer, take into consideration different sources of details about the collision. Look on the police report, in fact, to see if the reporting officer famous cell phone use. Contact all the witnesses listed within the report back to see in the event that they observed the defendant utilizing a cell phone. Be positive to ask your shoppers and the witnesses in the event that they noticed the defendant showing to talk to himself, as a result of even hands-free driving is distracted driving, and the above-cited research present driver’s response time is lowered even with hands-free utilization. As in the event that they noticed the defendant gesturing whereas driving, due to course many individuals will gesture with their arms whereas on the phone.
Even in case your consumer and the witnesses are unable to state that they noticed direct proof of cell phone utilization, such because the defendant holding a cell phone to his ear or speaking to nobody whereas driving alone, it’s doable to deduce cell phone utilization the place the defendant has no logical story to clarify their odd driving habits. For instance, in case your consumer sees the car developing on them from behind and failing to decelerate, your consumer won’t have time to focus their gaze on the motive force earlier than affect, however the truth that the motive force does not decelerate is a flag indicating that the motive force was distracted. Weaving is in fact one other instance of distracted driving, as is odd variations in velocity. You will want all of those info to influence a discovery decide that there are some indicia of distracted driving earlier than the decide will allow you to compel the defendant’s cell phone information.
File go well with early: If you see flags indicated distracted driving, file go well with instantly. You might want to start the method of investigation by means of formal discovery instantly, as a result of insurers are going to combat this discovery battle tooth and nail, as they’re conscious that the general public is disgusted with distracted driving, and that distracted driving will open up their insured’s private property, making a battle. Of course, it’s precisely this sort of battle that you simply need to create for the aim of leveraging an honest settlement on your consumer.
If you see flags indicating distracted driving, take into account serving a deposition discover on the defendant 20 days after service is effected on them, pursuant to California Code of Civil Procedure part 2025.210(b) which supplies in pertinent half as follows:
2025.210(b) The plaintiff might serve a deposition discover with out go away of court docket on any date that’s 20 days after the service of the summons on, or look by, any defendant. On movement with or with out discover, the court docket, for good trigger proven, might grant to a plaintiff go away to serve a deposition discover on an earlier date.
The prevailing knowledge is that you need to serve type interrogatories by mail after receiving the defendant’s reply, however it’s precisely that form of supposed “common sense” that you simply need to keep away from in these cases. You need to ship the protection a sign that you’re completely different, and they need to not count on “the usual” from you in any facet of this case. It additionally sends the protection a sign that you’re not going to allow them to take pleasure in their main protection tactic, that of stall and delay. This follow additionally provides you entry to the defendant earlier than the protection adjuster and protection legal professional have had further time to assist the defendant formulate false testimony. In their haste to organize a solution, the protection won’t have time to display screen the defendant for cell phone utilization, and so the defendant is likely to be unwary of the necessity to prevaricate about his cell phone utilization.
After serving the grievance and summons, fax and mail the protection adjuster to allow them to know that service has been effected, and allow them to know that you simply count on a well timed reply to the grievance. Then serve the deposition discover, and once more fax and mail the protection with a letter saying that you simply count on the defendant to seem on the date observed for the deposition. Make positive that you simply give your self sufficient time to truly get the deposition discover served. Code of Civil Procedure part 2025.270(a) requires 10 days’ discover.
The protection legal professional will seemingly phone you to say that there’s a battle of their schedule, however you need to politely and persistently insist on an early deposition for the defendant. When the protection legal professional asks what the frenzy is all about, inform them that it’s the plaintiff’s job to maneuver the ball, and that the protection ought to count on to see this tempo continued all all through the case. Do not, in fact, speak about your curiosity in getting discovery of cell phone utilization at this level. The protection won’t perceive why you might be pushing the case so rapidly, and it’ll make them begin to query their assumptions about what’s “normal” in a case, together with their “usual” analysis of the final word case worth.
The purloined letter, hidden in plain view: You are going to need to embrace a duces tecum demand together with your deposition discover. In that duces tecum demand, you’ll need to ask for cell phone information. Be positive to bury the request for the cell phone information in the course of the demand someplace, nicely after the standard request for images and statements of the plaintiff and witnesses, and so on, until you may have alleged punitive damages in your grievance, through which case the cell phone utilization will probably be entrance and heart. Be positive to serve together with the deposition subpoena set of type interrogatories, a typical request for manufacturing of paperwork, a set of specially-prepared interrogatories, if that’s wanted in your case, and a request for admissions. All of those paperwork will be served any time that’s 10 days after service of the summons on the defendant. See C.C.P. sections 2030.020, 2031.020, and 2033.020, respectively.
It is necessary to serve a typical set of requests for admissions, together with the deposition discover and the opposite paperwork. The requests for admissions ought to definitely ask the defendant to confess the info of legal responsibility out of your consumer’s perspective, and will ask them to confess the final word incontrovertible fact that the defendant is at fault for inflicting the collision. This is especially true if the case is a rear-ender, as a result of the protection legal professional will oppose the movement to compel cell phone information on the idea of that the cell telephones aren’t related in a rear-end collision. When the defendant denies legal responsibility within the request for admissions, as they inevitably will, you now have ammunition to indicate the invention decide that legal responsibility is disputed, and subsequently the cell phone information will go to the problem of fault.
Be thorough in deposing the defendant on how the collision occurred: If you may have noticed one of many flags of distracted driving, sometimes the defendant won’t admit cell phone use. You might want to first lay the inspiration for the erratic driving. Be positive to start the deposition with a benign tone towards the deponent. Don’t clue them into the actual fact that you will press them later within the deposition, as a result of they are going to turn into defensive, they usually will not provide the key info that lay the inspiration for the flags of distracted driving.
The defendant will sometimes admit that they rear-ended your consumer, if that’s the case, however they are going to gloss over the info main as much as the affect. You will certainly need to ask them when it was that they observed that your consumer was stopped, and what they did to keep away from the collision. You can ask them lead-in questions reminiscent of “it sounds like you were a bit distracted” or “it sounds like your attention drifted off of the road for a little bit.” Then, ask them if their home windows within the automobile have been rolled up or rolled down. Ask them if their radio was taking part in. Ask them if that they had some hassle conserving their car of their lane.
Then ask them in the event that they have been utilizing their cell phone on the time of the collision. If they are saying no, ask them when the final time was that they used their cell phone earlier than the collision. Ask them the place they stored their cell phone. Was it connected to their belt? Was it in a handbag or transient case? If there have been different occupants within the defendants’ car, remember to set their depositions for a time instantly following the defendant’s deposition, in order that the defendant will probably be clued into the truth that his fabrications is likely to be contradicted by different sworn testimony.
Sample duces tecum demand in industrial driving cases: You can rely on the defendant to be evasive in deposition. It just isn’t unusual for the defendant to say that they do not bear in mind their cell phone quantity or the identify of their cell phone service! If that’s the case, you’ll need to just be sure you have requested collision reviews and payments of lading relevant to the cargo that the defendant was carrying, in case the motive force’s cell phone quantity is there. Here is a few language that will cowl these objects:
All written collision reviews ready by defendant Donald T. Driver pertaining to the topic collision.
All drivers’ time sheets, log books (no matter type) concerned in recording the topic tractor truck’s utilization and mileage by all drivers within the 72 hours previous to the topic collision.
Don’t assume that the protection legal professional will object to the collision report ready by the motive force. It is likely to be that the protection legal professional might want to use the collision report back to refresh the recollection of the motive force, and so may quit the collision report, slightly than argue that it was an attorney-client communication ready by the motive force for the insurance coverage adjuster to organize for litigation.
Sample language for particular interrogatories looking for the defendants’ cell phone data: If the defendant claims in deposition to have forgotten their cell phone quantity or the identify of their service, you’ll need to serve specially-prepared interrogatories to elicit that data. Here are some pattern questions:
State the identify of all cellular telephone carriers utilized by defendant Donald T. Driver on the date of the topic incident which is the topic of this lawsuit.
State the identify of any cellular telephone service with whom defendant Donald T. Driver had a contract for cellular telephone service on the date of the topic which is the topic of this lawsuit.
State the cellular telephone quantity(s) of any cellular telephone(s) for which defendant Donald T. Driver had energetic service on the date of the topic incident.
State the identify of the cellular telephone service offering service for every of the cellular telephone numbers for which defendant Donald T. Driver had energetic service on the date of the topic incident.
State the cellular telephone quantity(s) of any energetic cellular telephone(s) supplied to defendant Donald T. Driver by his employer on the date of the topic incident.
State the identify of the cellular telephone service offering service for every of the cellular telephone numbers supplied to defendant Donald T. Driver by his employer on the date of the topic incident.
Was defendant Donald T. Driver utilizing a cellular telephone for driving instructions on the time of the topic collision?
Was defendant Donald T. Driver utilizing a cellular telephone for voice communications on the time of the topic collision?
Was defendant Donald T. Driver utilizing a cellular telephone for textual content communications on the time of the topic collision?
Was defendant Donald T. Driver utilizing a cellular telephone for any function on the time of the topic collision?
When was the final time earlier than the topic collision that defendant Donald T. Driver used a cellular telephone for any function?
IDENTIFY the final individual that defendant Donald T. Driver spoke with by cellular telephone previous the topic collision?
As utilized in these interrogatories, “IDENTIFY” means to offer the identify, handle, and a telephone variety of the particular person to be recognized.
Sample language requesting cell phone information: Below is an instance of language that you should utilize in requesting cell phone information. Be positive to incorporate questions which might be each narrowly directed to the time of the collision, in addition to questions which might be broader, in order that the protection will not say that they do not have information that are exactly that actual. Bear in thoughts that the defendant will sometimes say that they don’t seem to be within the possession, custody, and management of the requested information. Your main function in requesting these information is to display to the invention decide that it will likely be essential to compel the defendant to signal a launch of information, as a result of the defendant will, by that point, have answered these questions saying that they do not have possession of the information. In most cases, the one custodian of the information would be the carriers, however it’s a must to arrange the defendant by asking these questions first.
Produce all contracts for the supply of cellular telephony service entered into between defendant Donald T. Driver and any cellular telephony service which was in impact on the time of the topic collision.
Produce all contracts for the supply of cellular telephony service entered into between defendant Donald T. Driver’s employer and any cellular telephony service which supplied service for defendant Donald T. Driver’s use in impact on the time of the topic collision.
Produce any and all billing statements within the possession, custody or management of the responding defendants for cellular telephony service utilized by defendant Donald T. Driver for cellular telephony service which was in impact for the billing interval which coated the date of service for May 1, 2008 [insert the date of your subject collision].
Produce any and all billing statements overlaying the interval of 10:00 a.m. by means of 2:00 p.m. on the day of the topic collision for cellular telephony service utilized by defendant Donald T. Driver.
You are going to need to customise the language above to suit your case. If the collision occurred at 12:00 midday, for instance, it would be best to return to 10:00 a.m. and ahead to 2:00 p.m. to just be sure you get the info for the topic name, in case the events or the reporting police officer acquired the time of the collision a bit off.
Conclusion: It could also be an extended haul to get cell phone information in automobile accident litigation, begin now: You can rely on each the defendant and the protection legal professional to combat tooth and nail to stop you from getting your arms on the requested cell phone information. Start your hunt early, or you’ll find that you’re proper up towards the invention cut-off with out your information, or with out ample time to amend your grievance to allege punitive damages.