Electronic data records can come in several forms. There is another posting on this website dealing with electronic data records relating to vehicles. On a vehicle that data may be recorded on what some people call the “black box”, the electronic data recorder or it may be stored in the navigation system. That posting deals with the differences.
This posting deals only with data from sources other than cars or trucks.
Electronic Data Records From Cell Phones
The most likely source of that are cell phones. Cell phone data can be described either as content data or non-content data. The content data is the substance of the message. The non-content data addresses the when, where and how long issues.
In attempting to collect any data you need to first decide whether or not you are looking for the content or non-content data.
If you are looking for both then you need to go to all of the available sources. Those available sources are the phone itself, the carrier such as Verizon or the service such as Facebook, Instagram, etc. The service itself typically is not going to provide much data since they will take the position that you should go to the user.
Electronic Data Records-The Phone Itself
In terms of getting information off the phone itself, the best thing to do is to have the phone examined by someone who can extract all of the data that may be on it for a designated period of time. In most instances your search covers a limited period of time. There are technicians who can extract this data but they need the phone itself to do so. One of those technicians is Seltek Technology Solutions in Henrico, Virginia. They can be found at https://www.seltekinc.com/.
There are many other such technicians available.
Rule 4:9A permits inspection of the phone. In the case of Albertson v. Albertson, 73 Va. Cir. 94, 98 (Fairfax 2007) the court ordered the actual production of hard drives for inspection. The same would apply to a phone.
Once you’ve got the phone then the forensic expert can extract the data from it. Typically this extraction takes less than an hour. To access this data the expert may need the pass code from the user. Call, or contact us for a free consult.
Electronic Data Records By Subpoena
If you are going to attempt to obtain information from a cell phone carrier by means of subpoena then your subpoena should request: “All documents concerning (phone number) for the time frame (state the time frame) including:
- The name and address of the subscriber;
- The features of the service subscribed to;
- All outgoing calls;
- Incoming calls;
- All text/data usage; and
- All text/sms, mms messages.
The information sought is both content and non-content and is sought pursuant to the attached court order (or in the alternative, a signed authorization from the subscriber).”
Typically in order to get this information you are going to need either a court order or an authorization signed by the subscriber.
In addition to subpoenas, other discovery means to be used would be interrogatories inquiring as to any phone communications at or shortly before the event. Request for Documents also can be used to obtain the actual statements for services and then also the actual content.
The evidentiary problems with the use of this data to some extent relate to whether the data is hearsay or non-hearsay. If the data is content i.e., statements then it would be hearsay. If the data is non-content then it probably is not hearsay. Non-content would be call logs, date and time stamps and basic subscriber information. The reason this is not hearsay is because there is no declarant.
Electronic Data Records Through Social Media
Your cell phone or other device may also be the means of communication through all sorts of social media. That social media may be Facebook, Tumblr, Instagram, Twitter, Google+, Snapchat or a host of others. In order to determine the extent of someone’s social media presence, a website known as https://www.pipl.com may be a good source.
Discovery Limits
Typically in order to access an opponent’s social media communications there must be some factual predicate to establish relevancy. That factual predicate may be set by the parties’ public disclosures of such communication. For instance if what is publicly available on a person’s Facebook page indicates that they are talking about the particular event in question, that may be the basis for further exploration.
A focused and I believe reasonable interrogatory would be to ask the opposing party to identify all communications either through phone or through any social media referring or relating to the incident, damages as a result of the incident and to whom those communications were directed, the date of the communications and any responses to such communications. Seeking unfettered access to a person’s phone and/or social networking communications is really no different than rummaging through that person’s desk drawers and closets in their home. Ogden, 299 F.R.D. at 450.
Other Sources
Fitbit and smart watches may also be the source of a great deal of data. These devices may have data as to movement, distance traveled, location and also certain health information. Fit bit collects this data if the user grants access.
It is probably a good idea to check with the client as to their usage of any of these forms of communication.
Another source of a tremendous amount of data may be cameras that are focused on public areas. These may be surveillance cameras from banks, ATMs or parking lots. They may be traffic cameras or they may be personal cameras.
The location of traffic cameras at least in Virginia can be determined by going to a website https://www.511virginia.org.
FOIA requests are a powerful means of obtaining information. Another posting on this website deals with FOIA requests.
Preserving Electronic Data Records
Obtaining and saving data is now of greater importance than ever. Virginia Code section 8.01-379.2:1 deals with spoliation of evidence. It imposes a duty on the parties to save this type of data. Upon a finding of prejudice the court may order certain steps to cure the prejudice. If the court finds that one party acted recklessly or with the intent to deprive the other party of the data then the judge or jury may presume that such items were unfavorable. The court is also allowed to dismiss the action or enter a default if necessary. Call, or contact us for a free consult.
