The Fourth Department, reversing Supreme Court, determined defendants in this traffic accident case were entitled to access to plaintiff-driver’s (Farrell’s) cell phone to determine whether the phone was being used at the time of the accident. There are certain uses of the phone which were not revealed by the cell phone records already provided to defendants:
Although 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, they 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 do not show up on phone records. Moreover, the phone records did not indicate whether Farrell was using any applications on his phone, such as Snapchat or Facebook. * * *
Defendants “satisf[ied] the threshold requirement that the[ir] request [was] reasonably calculated to yield information that [was] ‘material and necessary’—i.e., relevant—” to issues involved in the action … . “The test is one of usefulness and reason” … . In support of the motion … defendants 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. Defendants also submitted evidence that Farrell did not brake before colliding with the school bus. Evidence concerning whether Farrell was distracted before the collision is relevant to the issues involved in this negligence action, and defendants’ request for production of or access to his cellular phone is reasonably calculated to yield relevant information … , especially considering that Farrell is unable, due to his injuries, to provide any information regarding his activities in the moments before the accident … . Tousant v Aragona, 2022 NY Slip Op 04871, Fourth Dept 8-4-22
Practice Point: Here defendants were entitled to discovery of plaintiff-driver’s cell phone to determine whether plaintiff was using it at the time of the traffic accident. Although defendants had already been provided with the cell-phone records, there are several uses of the phone which are not revealed by the records.