In an increasingly technological age, the production of cell phone records is becoming a common undertaking request in actions arising out of motor vehicle accidents. In Austin v. Smith,1 the Court recognized the importance of these records and ordered production of them, even where there was no evidence that the cell phone was in use at the time of the accident. Rather, the mere admission that the driver had a cell phone in his or her vehicle at the time of the accident was sufficient to warrant the production of the cell phone records.
Austin v. Smith, 2017 ONSC 5146
This action arose subsequent to a motor vehicle accident which occurred on February 8, 2012. At his examinations for discovery, the co-defendant, Mr. Smith, refused to answer several undertaking requests, one of which included production of his cellphone records for three hours before and after the collision.
After revising the request to include cell phone records from 10 minutes before and after the collision, Justice Miller referenced the increasing number of motor vehicle collisions related to cellphone use. It was determined that given the admission of having a cellphone in the vehicle at the time of the subject accident, a request for cellphone records proximate to the time of the collision was reasonable.
In particular, Justice Miller held at paragraph 16:
I am prepared to take judicial notice of the increasing number of motor vehicle collisions related to distracted driving and in particular cellphone use. In these circumstances, where there is an admission that the driver had a cellphone in the vehicle, a request for cellphone records proximate to the time of the collision is a reasonable one.2 [Emphasis Added]
Justice Miller in Austin has opened the door to enable disclosure of cell phone records based on the admission of the cell phone being in the vehicle at the time of the subject accident alone. Previously, evidence of use of the cell phone at the time of the subject accident was required for such disclosure. Both plaintiffs and defendants should take advantage of this expanded opportunity for disclosure to obtain orders for production of cell phone records. While it is often the plaintiff who is claiming negligence, it is important for the defendant to ensure all possible avenues of contributory negligence are explored to limit their exposure.
Due diligence and the prevalence of cellphone use and distracted driving necessitates consideration of a request for cellphone records from both parties involved in litigation.
1 2017 ONSC 5146
2 Supra note 1 at 16.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.