Evidence of Distracted Driving Warrants Discovery of Defendant's Cell Phone and Laptop Air Card Records and Deposition of Corporate Defendant's IT Employee

NEGLIGENCE – PERSONAL INJURY – DISCOVERY OF CELL PHONE AND WIRELESS AIR CARD RECORDS – DISTRACTED DRIVING
Detraglia v. Grant
(3rd Dept., decided 12/10/2009)

This isn't an insurance coverage case, but I've blogged occasionally about distracted driving, so I thought I'd post this.

Traditional rules of paper discovery have necessarily evolved to accommodate digital information and media.  Our electronic footprints include use of cellular telephone and other wireless devices, and when those devices are used while driving, their use presents a possible explanation for why an accident may have occurred under otherwise ideal driving conditions.  But must there be some evidence of distracted driving before discovery of the driver's cell phone or wireless device records are discoverable under New York State law?  The Third Department seems to think so.

Robert D. Grant Jr. was driving a vehicle owned by his employer, Hawkeye, LLC, when he collided with a vehicle driven by defendant Krystina Detraglia. According to the accident report, the accident occurred at 2:57 P.M. on March 13, 2006.  Plaintiff, the parent of one of the two injured passengers in Detraglia's vehicle, commenced this action in May 2007 against, among others, Grant and Hawkeye.  During discovery, plaintiff demanded that defendants produce billing records for all three of Grant's cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 P.M. and 4:00 P.M.  These technological devices were all in Grant's vehicle at the time of the accident, although Grant testified at his deposition that he was not using any of them when the accident occurred. Plaintiff also sought to depose Vincent Franzone, Hawkeye's information technology employee, concerning the whereabouts of these devices and Hawkeye's policies relating to storage and retention of technology records and equipment. Upon defendants' refusal to comply with these demands, plaintiff moved to compel disclosure. Saratoga County Supreme Court partially granted the motion by requiring defendants to produce the records for the three cellular telephones and wireless air card for the date of the accident between 1:00 P.M. and 3:30 P.M., and to produce Franzone for a deposition.  Defendants appealed.

According to the New York Law Journal's report of this decision, Hawkeye and Grant refused to provide the records from the electronic devices, arguing that in the absence of testimony from eyewitnesses that Grant was actually using the cell phones when the crash occurred, the discovery request amounted to a violation of his right to cell phone privacy under 47 U.S.C. §222 and 18 U.S.C. §1039[b].  Counsel for defendants argued that the same expectation-of-privacy principles regarding cell phone conversations also applied to communications over the laptop computer Grant was carrying when the crash occurred.  Defense counsel urged the Third Department to adopt the rule set by Queens County Supreme Court Justice Martin Ritholtz in Morano v Slattery Skanska, Inc., 18 Misc 3d 464 (Sup.Ct., Queens Co., 2007), in which the court held that "the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant's cell phone records, since such a discovery request would amount to nothing more than a fishing expedition[.]"

In rejecting the defendants' privacy arguments and affirming the lower court's order insofar as it compelled defendants to produce the cell phone and wireless air card records for an in camera inspection and its IT employee for a deposition, the Third Department held:

Although disclosure is limited to information that is material and necessary to the prosecution or defense of an action, the discovery statutes are liberally construed and trial courts are "afforded broad discretion in managing disclosure" (American Assoc. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]; see CPLR 3101 [a]; Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]). The record here contains information indicating that Grant may have been distracted immediately prior to the accident. There is also conflicting evidence concerning his possible use of the laptop computer in his vehicle. Grant testified at his deposition that the laptop was in a bag, either behind his seat or in the passenger seat, that he never used it while driving, and that while driving he never left it strapped to the computer desk bolted to the vehicle. The tow truck driver who arrived at the scene submitted an affidavit stating that he saw the laptop on the vehicle's computer desk, with the screen flipped up and turned on, indicating recent use. This conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence. Accordingly, Supreme Court did not abuse its discretion in determining that the records were subject to disclosure (see Andon v 302-304 Mott St. Assoc., 94 NY2d at 747; Czarnecki v Welch, 23 AD3d 914, 915 [2005]). Disclosure of the records should be limited to a narrow time frame surrounding the accident, namely 2:30 P.M. to 3:30 P.M. (see McMahon v Aviette Agency, 301 AD2d 820, 821 [2003]; Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 475 [2007]). However, the records should be provided for the court to review in camera, with the court providing the parties only relevant information redacted to protect defendants' privacy interests (see Morano v Slattery Skanska, Inc., 18 Misc 3d at 475).

The telephones and laptop that Grant possessed on the date of the accident were upgraded for newer models, the original devices were returned to Hawkeye and those originals possibly contained information concerning whether they were in use at the time of the accident. Thus, Supreme Court correctly determined that Franzone's deposition could reveal material information (see Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843 [2001]).

This decision appears to mark the first New York state court appellate treatment of the issue of whether and under what circumstances cell phone records are discoverable in personal injury actions.  Had there been no evidence that the driver was using his cell phones or laptop prior to the accident, it is questionable whether the Third Department would have upheld the order compelling discovery of the associated records.  One certainly could argue that the Third Department's specific mention of the "conflicting evidence" of such possible use means that some evidence of cell phone or laptop use at the time of or just prior to an accident is required before a New York state court may compel discovery of the driver's cell phone or wireless air card records.