Discovery of Wireless Device Records in MVA Case

In 2003, researchers at the National Highway Traffic Administration proposed a long-term study of 10,000 drivers to assess the safety risk posed by cellphone use behind the wheel. That study was never conducted; however, based upon a body of research, the highway safety researchers estimated that cellphone use by drivers caused around 955 fatalities and 240,000 accidents over all in 2002. Detraglia v. Grant, a December 10, 2009 unanimous decision by the Supreme Court, Appellate Division, Third Department is perhaps the Court's recognition of the ubiquitous unsafe use of wireless electronic devices while driving

In Detraglia, plaintiff prosecuted a bodily injury action against the owner and the operator of a motor vehicle that collided with the motor vehicle in which her wards were passengers. During the course of discovery, plaintiff demanded that defendants produce billing records for all three of the operator's cellular telephones and the 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. The aforestated technological devices were all in the defendants' vehicle at the time of the accident, although the operator testified at his deposition that he was not using any of them when the accident occurred. Plaintiff also sought to depose the defendant owner's information technology employee, concerning the whereabouts of these devices and the owner'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. The 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 the IT person for a deposition.

In the furtherance of broad discovery of all matter material and necessary to the defense or prosecution of an action, the Supreme Court, Appellate Division, Third Department held that the motion court did not abuse its discretion in determining that wireless device records were subject to disclosure (citing Andon v 302-304 Mott St. Assoc., 94 NY2d at 747; Czarnecki v Welch, 23 AD3d 914, 915 [2005]), where there was conflicting evidence that raised questions as to whether the defendant used any technological devices while driving, rendering the records relevant to the question of his negligence. The defendant testified at his deposition that a laptop computer 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. However, that testimony was refuted by the affidavit of a tow truck driver who arrived at the scene and averred that he saw the laptop on the vehicle's computer desk, with the screen flipped up and turned on, indicating recent use.

However, the Court held that disclosure of the records should be limited to a narrow time frame surrounding the accident (citing McMahon v Aviette Agency, 301 AD2d 820, 821 [2003]; Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 475 [2007]), and provided for the court to review in camera, with the court providing the parties only relevant information redacted to protect defendants' privacy interests (citing Morano v Slattery Skanska, Inc., 18 Misc 3d at 475).

This is apparently the first appellate court decision concerning the discovery of wireless device records in these circumstances. Given that the defendant denied use of the device and in the absence of any direct proof that it was actually being used prior to the incident, this is a broad construction of CPLR Article 31. Here, defense counsel argued to the Third Department that they adopt the rule established by Queens County Supreme Court Justice Martin Ritholtz in Morano v Slattery Skanska, Inc., 18 Misc 3d 464 (Sup.Ct., Queens Co., 2007). In Morano, Justice Ritholtz 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."

It will be interesting to see how this develops in each of the departments. Nonetheless, as it stands there is appellate authority for a party to seek an order compelling production of wireless device records where at least a logical inference can be drawn that the driver was using the device prior to the incident.