Be Careful Who You Text (or Call): Early Dispatches from a New World of Text Messaging Evidence
The New Jersey case of Kubertv. Best is making headlines for holding that not only can a person who is texting and driving be liable fornegligence when a crash results, but so too can the “remote texter” – i.e., the person who is corresponding via text message with the negligent driver.
Opinion here (as is almost always the case, theopinion, although not without flaws, is more thoughtful than media reportssuggest).
In the case, the court holds that a sender of a text messagecan be liable for negligence when her message distracts a driver and “thesender knows that the recipient is both driving and will read the textimmediately.” The court nevertheless affirmedthe trial court’s grant of summary judgment in favor of the “remote texter”because the plaintiffs failed to produce sufficient evidence to meet the above standard.
The case is interesting from an evidence perspective becauseit highlights the potential for text messages as a source of evidence, and the needfor litigators to get ahold of text messages (early) in discovery.
Most basically, the case highlights the number of textmessages that are out there, particularly in cases involving young people. In her deposition, the remote-texter stated she“text[ed] more than 100 times per day,” explaining: “I’m a young teenager. That’s what we do.” The remote texter and driver texted eachother 62 times on the day of the accident, including an exchange just before theaccident.
The above information, included in the opinion, suggeststhat the plantiffs obtained phone records from the texting service provider,but those records apparently only contained metadata, not content. As the N.J. court emphasizes, what is “[m]issingfrom the evidence is the content ofthe [text] messages.” It would beinteresting to know why these records did not include content. It is possible the content was no longer availableat the time of the request, or the phone company declined to provide content(or felt prohibited from doing so by federal law prohibiting disclosure ofstored communications).
Another potential source of the text message content wouldbe the driver’s, or remote texter’s, phones. Law enforcement personnel responding to the scene of what was, in thiscase, a horrific crash might have seized the driver’s phone as evidence – theopinion notes a new NJ criminal law that will apply to future cases involvinginjuries caused by texting drivers – and in so doing preserved the messages. (My colleague Adam Gershowitz has a timely articlecoming out on cell phone seizures. Forthose interested in the topic, you can find it here.)
Clearly if you are trying to meet the N.J. standard, thecontent of the pertinent text messages would be a critical and easilyadmissible source of evidence.
Back to the substantive law, the standard set by themajority in this case seems to be accurately described by the concurring judgeas a “high . . . bar” that ”will rarely be met” (although it may still be frequentlylitigated). But the standard seemsequally applicable to cell phone calls,for which it may be easier to establish both that the remote-caller knew thedriver was on the road, and was responding to the call while driving. . . .
– JB