As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable. The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.
The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road. He thought the person was broken down and calling for help on her cell phone. He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head." The defendant moved to quash the subpoena for the records, citing privacy issues.
Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim. Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened. Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.
Did the driver pull out in front of the plaintiff? If there was an issue about distraction, I am surprised that there is any sort of issue at all-- and I'm surprised that a subpoena was used-- I'd have just served a notice for discovery & inspection for an authorization for the records, and for a copy of the billing statement for that month.
Posted by: Bill Altreuter | December 19, 2007 at 01:46 PM