Your Digital Data In A Car Accident
With all of the talk today about cell phone data and whether or not Apple should be compelled to open cell phones in criminal investigations, many have questions about their data in a civil case, like a car accident. Firm Partner, Andrew Roberto, sat down with WVLT yesterday to discuss the role digital data can play in a civil case. Watch the WVLT interview here.
Ten years ago we never saw cell phone data being requested in discovery or for that matter social media postings. However, today this has become a fairly regular discovery request in civil cases. As technology changes so will the requests made for discovery in civil cases including personal injury cases like car accidents. Where we typically see requests in car accidents for cell phone data, it is to see if a phone was in use at the time of an accident. We haven’t seen any cases so far where data from fitness tracking aps has been requested in discovery, but as that technology becomes more widely used it is likely that it could become more attractive in discovery. Any request for discovery could be ordered by a Court if the information contained is not likely to be available by any other means, so data in fitness tracking aps could conceivably be discoverable.
In general, the parties in a civil case can obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action or if it relates to a claimed defense that one party is employing. Any party in a civil matter may be able to resist discovery of electronically stored information from sources that are identified as not reasonably accessible because of undue burden or cost. Despite this, the Court could order such discovery if it is shown that the likely benefit of the proposed discovery outweighs the likely burden or expense. The Court would also look to see if the discovery sought could be obtained from some other source that is more convenient, less burdensome, or less expensive.