Featured in the Suffolk Lawyer
By Christopher E. Vatter and Scott B. Fisher
Distracted driving, including using a cell phone, is a significant cause of all motor vehicle accidents. Whether a driver involved in a motor vehicle accident was using their cell phone at the time of the accident is “relevant and material” to establishing such driver’s negligence. However, cell phone records alone may not be sufficient in establishing whether the driver was, in fact, using their cell phone at the time of the accident.
Cell phone records are limited to incoming and outgoing verbal communications. However, these records do not provide information as to the use of other applications, including iMessages, Facebook, Snapchat, other social media sites, etc. As a result, it may be necessary to obtain an inspection of the cell phone. The Fourth Department in Tousant v. Aragona, provides guidance for obtaining such an inspection.
In Tousant, Plaintiff commenced a “negligence action, individually and on behalf of her son, Anthony J. Farrell, seeking damages for injuries sustained by Farrell when the vehicle he was operating collided with a school bus . . . . The accident left Farrell in a vegetative state.” During discovery, the defendants sought production of, and information from, Farrell’s cell phone as to whether Farrell was using his cell phone at or near the time of the accident. While the trial court denied production of the cell phone, it allowed defendants to obtain cell phone records from Farrell’s service provider. The defendants subsequently obtained those phone records, which established that Farrell was not talking on his phone at the time of the accident.
However, and importantly, the records did not indicate whether Farrell opened or sent text messages or was using any social media applications on his cell phone during the relevant time period. Instead, on the phone used by Farrell, texts were sent as encrypted “iMessages” that do not show up on phone records. Moreover, the phone records did not indicate whether Farrell was using any applications on his phone, such as Snapchat or Facebook. The defendants moved for a second time to obtain production of and access to Farrell’s cell phone, arguing that an examination of the phone was necessary to determine whether Farrell “was using it at the time of the accident for purposes other than verbal communication.” The trial court, once again, denied production of the phone, finding that no factual basis was presented to suggest that the cell phone was being used for texting, which the trial court concluded was reasonably required before discovery concerning the cell phone was ordered. On appeal, the Fourth Department reversed.
In reversing, the Fourth Department acknowledged that “New York has a liberal disclosure statute, requiring ‘full disclosure of all matter material and necessary in the prosecution or defense of an action.”’ The appellate court concluded that: “Defendants satisf[ied] the threshold requirement that the[ir] request [was] reasonably calculated to yield information that [was] material and necessary—i.e., relevant— to issues involved in the action .”
In particular, the appellate court concluded that the defendants submitted evidence that Farrell was distracted at the time of the accident including, “that Farrell was traveling at close to 80 miles per hour seconds before the accident, which occurred on a residential road near an elementary school” and that “Farrell did not brake before colliding with the school bus.” In permitting the production of or access to Farrell’s cell phone, the Fourth Department held that “[e]vidence concerning whether Farrell was distracted before the collision is relevant to the issues involved in this negligence action, and defendants’ request for production of or access to his cellular phone is reasonably calculated to yield relevant information.”
Notably, one of the factors the appellate court considered in deciding to allow the inspection of the cell phone was the fact that “Farrell [wa]s unable, due to his injuries, to provide any information regarding his activities in the moments before the accident.” Even without Farrell’s testimony, the evidence suggested his excessive speed and failure to break may have been due to cell phone usage. Thus, a court’s willingness to allow the production of or access to a driver’s cell phone is not limited to the factual situation present in Tousant.
Based upon the holding in Tousant, an inspection of a cell phone would be permissible if the proper foundation is laid. A practitioner should seek to obtain discovery to establish that the driver may have been distracted at the time of the accident and that the driver used or may have used applications on their cell phone that would not be reflected on their cell phone records evidencing verbal communications. With distracted driving contributing to so many accidents, an inspection of a driver’s cell phone should be pursued when the evidence indicates the driver may have been distracted at or near the time of an accident. The same rationale could also be used to warrant production of or access to a party’s cell phone in any negligence action where a party’s distraction or alleged wrongdoing may be attributable to cell phone usage.
 According to the National Highway Traffic Safety Administration (“NHTSA”), “[d]istracted driving is any activity that diverts attention from driving, including talking or texting on your phone, eating and drinking, talking to people in your vehicle, fiddling with the stereo, entertainment or navigation system — anything that takes your attention away from the task of safe driving.” https://www.nhtsa.gov/risky-driving/distracted-driving
 According to NHTSA, “[u]sing a cell phone while driving creates enormous potential for deaths and injuries on U.S. roads. In 2020, 3,142 people were killed in motor vehicle crashes involving distracted drivers.” https://www.nhtsa.gov/risky-driving/distracted-driving
 Whether a driver “was using his cellular phone at the time of his accident constitutes information that will certainly ‘lead to the discovery of information bearing on the claims.’” Tousant v. Aragona, 172 N.Y.S.3d 789 (4th Dep’t 2022), citing Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421 (2d Dep’t 1989); Vyas v. Campbell, 4 A.D.3d 417, 418 (2d Dep’t 2004).
 Tousant, 172 N.Y.S.3d 789.
 172 N.Y.S.3d 789 (4th Dep’t 2022).
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 Id. at *3-4 (emphasis original, citations omitted).
 Id.) (internal citations and quotations omitted).
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