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In 2012, a Texas jury ordered Coca-Cola to pay $21 million in a distracted driving lawsuit, because one of their commercial truck drivers was having a conversation on a cell phone when he collided with a car driven by a 37-year-old woman. The plaintiff later had to undergo surgery for spinal injuries.

Just a year earlier, a Chicago woman filed a wrongful death lawsuit against the driver she alleged killed her father by colliding with him while he stood on the side of the street. The driver was talking on her cell phone at the time.

Distracted driving claims are on the rise, and it’s no surprise—according to the National Highway Traffic Safety Administration (NHTSA), in 2009, nearly a half million people were injured as a result of distracted driving. Proving that cell phone or computer use was a factor in the accident can be tricky, but following the trail of electronic evidence often yields results.

Mere Possession of Technology Often Not Enough

Scientific studies have indicated that using technological gadgets while driving can hinder a driver’s ability to focus, increasing the risk for crashes. The National Safety Council states that more than 50 peer-reviewed studies have identified risks associated with cell phone use while driving, and that drivers who use cell phones are four times more likely to be in a crash.

Depending on the case and the state, however, a court may not agree that the mere possession of technology warrants a search of the driver’s records. Many judges will require evidence first that the driver was using the gadget. In Morano v Slattery Skanska, Inc., for example, the court held that "the mere fact that a defendant was in possession of a cell phone at the time of the accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s phone records, since such a discovery request would amount to nothing more than a fishing expedition."

Such evidence may come from other sources, however. Witnesses may testify that they saw the driver using the phone or computer. Police officers who respond to the accident, or even tow truck drivers, may note that the device was open, placed near the driver, or transmitting. Pictures of the accident may also reveal clues, as might careful written discovery of the defendant.

Other Methods of Discovery

Other methods to obtain evidence of illegal or negligent cell phone or computer use in a personal injury lawsuit include:

  • subpoenas, in which the plaintiff’s attorney gains permission from the court to review the driver’s cell phone records;
  • interrogatories, where the plaintiff’s attorney asks the driver for information concerning his cell phone carrier and social networking accounts;
  • requests for production, in which the attorney asks the driver for documents which may indicate inappropriate use of technology;
  • and depositions, during which the attorney may ask the driver about his or her cell phone use.

Overall, obtaining evidence that the driver was distracted is accomplished much like obtaining any other type of evidence. As new technology becomes ever more incorporated into our daily lives, laws regarding the use of that technology while driving are going to continue to evolve. We are also likely to see different types of technology emerge that will help us to better determine when a driver was behaving in a negligent manner. Meanwhile, the more adept attorneys become at obtaining key evidence in cases like these, the more victims will receive the justice they deserve.

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