Trial Court Denies Application For Cellphone Of Driver Killed In Car Accident

This was originally published on the SGR Blog.

Appeals Court Decides If Access to Phone Should Be Granted

­­­Kristie R. Tousant filed 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 bus was operated by John M. Aragona and owned by Central Square Central School District (CSCSD). The accident left Farrell in a vegetative state.

During discovery, Aragona and CSCSD moved for production of, and information from, Farrell’s cell phone, seeking to determine whether he was using the phone at or near the time of the accident. The Supreme Court denied the motion insofar as it sought production of the phone, but granted the motion to the extent it sought cell phone records from Farrell’s service provider. Aragona and CSCSD appealed.

The cell phone records subsequently obtained from the service provider established that Farrell was not talking on his phone at the time of the accident, but did not indicate whether he opened or sent text messages during the relevant time period. On the phone used by Farrell, texts were sent as encrypted “iMessages” that did not show up on phone records. The phone records did not indicate whether Farrell was using any applications on his phone, such as Snapchat or Facebook.

Aragona and CSCSDS thereafter filed a second motion, once again seeking production of and access to, Farrell’s cell phone, asserting that examination of the device was necessary to establish whether Farrell was using it at the time of the accident for purposes other than verbal communication. The Court denied their motion, ruling for a second time that Tousant did not have to produce Farrell’s cell phone for examination. The Court reasoned that no factual basis was presented to suggest that the cell phone was being used for texting, and that was reasonably to be required before any further discovery concerning the cell phone was ordered. Aragona and CSCDS appealed.

Modern cell phones hold for many Americans the privacies of life. New York has a liberal disclosure statute, requiring “full disclosure of all matter material and necessary in the prosecution or defense of an action.” New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information.

The appeals court found that Aragona and CSCSD satisfied the threshold requirement that their request was reasonably calculated to yield information that was ‘material and necessary’—i.e., relevant— to issues involved in the action. The test was one of usefulness and reason. In support of the motion, Aragona and CSCSD submitted evidence 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. They also submitted evidence that Farrell did not brake before colliding with the school bus. Evidence concerning whether Farrell was distracted before the collision was relevant to the issues involved in the negligence action. The request for production of, or access to, his cellular phone was reasonably calculated to yield relevant information, especially considering that Farrell was unable, due to his injuries, to provide any information regarding his activities in the moments before the accident.

Whether Farrell was using his cellular phone at the time of his accident constituted information that would certainly lead to the discovery of information bearing on the claims.  If there was any possibility that the information was sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered matter material in the action.

Aragona and CSCSD adequately demonstrated that the issue of whether Farrell was using his cellular telephone at the time of the accident was relevant to the contention that Farrell was negligent in the operation of his motor vehicle. So, the matter was reversed and remitted to The Supreme Court to fashion an order tailored to the controversy that identified the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

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