Problem No 1: many of these cell phone providers keep the user's texting history for only a limited period of time. In a recent case, this was the cell phone provider's response to our subpoena seeking the driver's test messages on the day of the collision:
Text message details are kept for approximately the most recent 18 month period from the date of processing. No text message CONTENT was found. Text message CONTENT is not retrievable for any length of time. The FCC does not mandate the retention of stored content.
Problem No 2: injured drivers often wait until shortly before the two year Ohio statute of limitations is about to expire before contacting an attorney. Many times they wait based on insurance company promises to "work with" them on a fair settlement. Frequently, "working with you" turns into you getting "worked."
If a personal injury lawsuit is eventually filed, the negligent driver's text messages will often be gone and beyond the capacity to subpoena.
Can't you just ask the insurance company to produce their driver's cell phone records early on in your dealings with the insurance company? Well, good luck with that. You'll get one of 3 responses: "We are not allowed to provide that information," "We don't have access to that information" or "We are accepting fault for the crash so there's no need to retreive that information."
Bottom line: we'll discover the existence of Bigfoot AND the Loch Ness Monster before you will EVER get that information from the insurance company. And you can't get it yourself unless you subpoena it. And you cannot subpoena it unless there is an existing lawsuit filed.
Texting and driving is more than simple negligence or inattention. It is reckless in my opinion and is akin to driving while intoxicated or impaired. If you can prove that a driver was texting at the time of the collision, that driver can be held liable for punitive damages, which exist in Ohio to punish the driver. Punitive damages in this situation can be recovered in addition to damages designed to compensate you for your lost wages, medical bills, and physical pain and disfigurement.
Lesson: you deal with the insurance company at your peril. And if you wait too long, important evidence of the driver's misconduct can be lost.