Monday, December 2, 2013

Can You Get The Other Driver's Cell Phone/Text Records After A Crash?

If you've been in a crash and you suspect the other driver was distracted/texting, there are ways to obtain the negligent driver's cell records, but there are some hoops to jump through. First, you can be sure that you cannot simply get those records on your own even if you knew the person's cell phone provider.

There is really only one magic ticket to obtaining cell phone records after a collision: a subpoena. And in order for someone to issue a subpoena, there must be an active criminal or civil case pending. For example, if the investigating officer is considering bringing more serious charges against the negligent driver (say reckless operation instead of a simple failure to yield, for example), you may wish to follow up with the officer or the prosecutor as to whether they are willing to subpoena the driver's cell phone records.

But what if law enforcement is unwilling to subpoena the records in the criminal/traffic case against the driver who hit you? You do have an option: you can file a civil negligence lawsuit against the offending driver. But there's an important catch: each cell phone/text provider has varying retention periods for storing and maintaining these records. As you can see from the handy chart, if you wait too long, you won't be able to retrieve the data even if you have a valid subpoena.

And there's another catch: you'll need to hire an attorney who is competent in personal injury litigation to sue the negligent driver. No lawsuit, no subpoena, at least in Ohio. Your attorney will need to send written questions and requests for production of documents, known as "discovery," to the negligent driver. This will ferret out the identity of the cell phone provider, for purposes of sending a properly worded subpoena to the provider.

Bottom line: if you suspect that the offending driver was texting, you need to act quickly if you want to obtain valuable cell phone records.