Don’t Phone It In

Ninety-seven percent of Americans now own a cellphone, and 85% of those own a smartphone, a mobile device that does a lot more than just make and receive calls. In fact, a smartphone can track every aspect of a person’s life, including sleep; eating and health trends; location and movement; and social and financial alerts. The average person has 40 apps installed on their cell phone, with about half being used regularly. 

The wealth of data stored in a cellphone can provide relevant information to defend a personal injury case. The discoverability of cellphone data has changed from merely seeking phone/text records from the cellphone provider to asking for a forensic analysis of the cellphone to extract and preserve relevant stored data. With the increase in cellphone usage, app downloads, and advances in technology, courts have had to grapple with the disclosure of such data and balance its discoverability with the potential violation of privacy, amongst other issues.

Cellphone data can be particularly useful in defending automobile accident cases. Location and GPS data can show where an involved driver was before the accident, what route was traveled to the point of the accident, and, potentially, what the driver’s speed was in the moments before the impact. Health app data can show an intervening health event, or increased heart rates or spikes in blood pressure that could be associated with high speeds or an impending accident. App usage in the moments before an impact can prove distracted driving. A forensic analysis can determine whether a person was posting on an app, downloading an app or data, or simply opening an app just before an accident occurred.

In Audrey Gassner-Dunayer v. Venus Williams, the plaintiff’s attorney secured the defendant’s cellphone records from the provider. The records did not provide specific information, but showed data usage within one hour before the accident. The plaintiff sought to compel the inspection of the defendant’s cellphone by a forensic expert, arguing that the time the data was used, what it was used for, and whether such data usage was active or passive could prove a claim of distracted driving. The defendant opposed the motion, arguing primarily that such disclosure would be a privacy violation.

In weighing these two competing arguments, the court ordered the defendant to have the phone inspected and data analyzed by a forensic expert of their choosing, disclose the expert’s information and opinion on the data usage for a period of time up to and including the time of the accident, and have the expert submit to a deposition regarding his opinions. Clearly, the Gassner-Dunayer court saw that there was a genuine basis to entitle the plaintiff to the cellphone data usage that could support a distracted-driving claim against the defendant, but it tailored its decision to protect the defendant’s privacy.

In any personal injury litigation, a demand should be made to immediately preserve the cellphone and data to allow for a forensic analysis. In automobile claims, if there is a viable distracted-driving claim, speed claim, or drug/alcohol claim, then a genuine basis exists for the inspection of the cellphone by a forensic engineer so the data can be analyzed. The need to do this quickly is paramount so that data is not lost or destroyed, or does not automatically disappear.

If cellphone data/content is not isolated, extracted, and analyzed immediately, there is a high risk of the unintentional or intentional mishandling of the cellphone that will lead to the alteration, destruction, or spoliation of the data/content.

The cellphone must be isolated from network connectivity to prevent it from receiving new information that potentially can corrupt other prior stored information. Isolating the mobile device from other devices used for data synchronization is important in order to keep new data from contaminating existing data. In other words, if the cellphone is still connected to a network, any data that is stored on it, including GPS locations and data apps, can be modified, altered, or deleted by new incoming data/information and may be unrecoverable.

Further, it is important to isolate a mobile device from all radio networks, such as Wi-Fi, cellular, and Bluetooth, to keep new traffic like SMS messages from overwriting existing data. Indeed, some devices may be configured to automatically wipe all data when the GPS in the device determines that it has left (or entered) a specific predetermined geographic area.

Another reason to isolate is that many mobile devices have master reset codes that can clear content and revert it back to the original factory conditions. In addition, due to the volatile nature of some cellphones, battery-powered devices held in storage for more than a day risk power depletion and data loss unless a process is in place to avoid that outcome. Failure to place the mobile device in a secure area with controlled access can prove to be detrimental.

Moreover, all cellphones have different general retention policies for the deletion of data. iPhones, for example, can have specific time periods for text messages and incoming/outgoing telephone calls to automatically delete if not set for a certain time period.

Substantial evidentiary data can be found within the file system of a mobile device. Interactions such as application launches and usage; battery percentages; unlocking of the device; orientation of the screen; and cameras all factor into determining usage at an exact moment in time. With properly maintained evidence and extraction methods, this data can be retrieved.

There is a significant amount of relevant data/content on a cellphone that could be used in defending any personal injury litigation. There is data that could potentially show a plaintiff’s negligent actions or dispute a plaintiff’s alleged disability. Clearly, gaining access to this data/content immediately before it disappears is a real concern for all parties, and courts are going to have to come up with creative ways to allow for such analysis while protecting the privacy interest of those involved. 

What to Look For

A forensic analysis of a cellphone can uncover potential digital evidence, including that which may be hidden or obscured. This includes:

•             Subscriber and equipment identifiers.

•             Date, time, language, and other settings.

•             Phonebook/contact information.

•             Calendar information.

•             Text messages.

•             Outgoing, incoming, and missed call logs.

•             Emails.

•             Photographs.

•             Audio and video recordings.

•             Multimedia messages.

•             Instant messaging.

•             Web browsing history.

•             Electronic documents.

•             Social media-related data.

•             Application-related data.

•             Location information/geolocation data.