How to Legally Get Smartphone Records
When the state or federal government, or a lawyer, feels that access to your mobile phone data is required (who you called, when you were on your phone…), here’s what legally needs to be done. This often times is relevant in distracted driving and commercial trucking cases.
Please note while reading this blog post that much of the information was extrapolated from articles in the 2015 Advocate Magazine written by attorneys Martin J. Kanarek and Michael J. Kopple and Trial Lawyer Magazine by Bernard Walsh and Elisabeth DeWitt.
Unlike the government, before you have the right to obtain a cell phone users private date, you must obtain consent or acquire the information in a legal fashion either by consent, stipulation, public records request or subpoena. This post discusses all approaches. Because I am a California lawyer, most examples relate to California law. Similar approaches may apply to other states.
Consent and Stipulation
If the person or company is willing to share and produce this information, have them sign a written authorization or stipulation allowing you access to the information. Generally speaking, this is the easiest way to obtain private cell phone information. Note that for privacy reasons, this rarely happens and permission is rarely granted.
Public Records Request
Under California law, you may make a request to a public entity to for the disclosure and production of information. Here’s a sample template. It relates to a 911 call but can be modified as needed:
By email (address here)
By mail (address here)
Re : Time, Date, Location, Client Name, Specific Report ID#
Please be advised that this firm is retained counsel for NAME with respect
to DESCRIPTION OF INCIDENT IN DETAIL (hereinafter “Incident”).
The XYZ report is attached (attach any investigative reports that may
help the clerk located your item).
In accordance with the California Public Records Act (details below), please research and provide to this office, the following:
– The 911 log for the incident (if a 911 call)
– The Journal Report/CHP Centralized Cad Journaling System report for the incident
– All logs, tapes and recordings of 911 calls relating to the incident.
Thank you. Please contact the undersigned with any questions or comments.
Note: The California Public Records Act (“CPRA”) (Gov. Code 6250 et seq.) permits anyone to obtain, subject to certain inapplicable exemptions, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” (Gov. Code 6252(d)). The act was designed to provide “every person in this state” with access to such information (see 6252). Such access has been described as “a fundamental right of citizenship.” (Rogers v Sup. Ct. (1993) 19 Cal.App.4th 469, 475.) Disclosure is required under the Public Records Act even if the same or similar documents could be obtained through discovery in civil proceedings. (Wilder v. Sup.Ct. (Metropolitan Transit Authority (1998) 66 Cal.App.4th 77, 83.)
Subpoena (all calls)
This is the best way to make sure you get all the information you are looking for. You must file a lawsuit to obtain subpoena power. Next, when issuing the subpoena, make sure to specify all names, dates, calls, logs and journal reports. Be aware of all time limits re audio recordings noted below. The following relates to 911 and trucking litigation related calls but the approach applies to almost all cell phone cases.
First of all, time is of the essence. Make a formal request sooner rather than later.
In California, each city has different requirements as to how long it must preserve this information. As With this in mind, it’s important to request all call or DCA logs as soon as possible. This allows you to get all phone numbers which came in and were recorded.
Use a Public Records Request (above). If you have it, also attached a copy of the police or incident report to make it easy for a public employee to connect the dots.
Use this link to see if your city is covered by the Sheriff’s Office and then email your public records request to email@example.com (time limit for audio is 2 years).
Police Department (LA)
Email public records request to firstname.lastname@example.org (time limit for audio is 2-10 years).
California Highway Patrol
Email public records request to email@example.com (time limit for audio is 6 months).
Use the City of Long Beach Public Request form at their website and/or email wanda.miller @ longbeach DOT gov (time limit for audio is 3 years).
Call 714-834-4211 to make a formal oral request to dispatch. (time limit for audio is 6 months).
Mail to Records at 4102 Orange Street, Riverside, CA 92501. (time limit for audio 6 months).
A personal in office request is required. Located at 701 N. D. Street, San Bernardino, CA. (unknown re time limit for audio).
Send a public records request to 464 N. Rexroad Drive, Beverly Hills, CA 90210 (time limit for audio is 1 year).
Call the local police department or county clerk and ask how you can get the 911 call.
It’s always important to preserve driver logs, tool receipts, Bills of Lading and on board computer data (QUALCOM). It’s just as important to obtain and protect all driver and company cell phone records.
The key is to demand all cell phone information is preserved. This includes all data on a driver, supervisor or other company phone relating to calls, texts, websites visited, movies downloaded, photos take, all related GPS info. A skilled forensic cell phone expert can use this information and compare it to the driver’s log books, on board computers, black boxes and party testimony.
Make a demand to the other party and cell phone carrier to preserve all cell phone records. You should specific that all information be preserved including all dates and times of calls regardless of who originated the call (driver or third party), all data download quantities, text message history (numbers, date and time),
When using subpoenas to cell phone carriers, include in your subpoena the following:
– All inbound and outbound numbers used
– All inbound and outbound SMS and text messages
– All elapsed times and usage durations for calls and texts
– Connection date and time
– Seizure time
– Originating phone number and IMEI or MEID (phone serial number)
– Originating IMSI (SIM Serial Number)
– The tower ID and GPS location during each indicated transmission
– The plan code (M2M- Mobile to Mobile)
– General date connection information is also useful to experts and this includes
– Connection date and time
– Elapsed time or data transmission
– Bytes up and down
– Type of data accessed (visual voice mail or mobile data)
– Cell tower number and GPS location for all cell towers
Note that California Rules of Court 2.1040(b)(1) requires you to make and provide a transcript of the electronic recording and provide opposing counsel with a duplicate of the recording. When used in trial, it must satisfy all evidence requirements (marked and admitted).
Getting the Cell Phone Recording Played at Trial
You must authenticate the recorded call pursuant to Evid. Code 1401. Absent obtaining a written stipulation from the other side, the best practice is to subpoena the custodian of records re date and time of call and how recorded, saved, and maintained. If a hearsay objection is made by opposing counsel, common exceptions include: Statements of a party (Evid 1220); Declaration against interest (Evid 1230); Prior Inconsistent Statement (Evid 1235); Prior Consistent Statement (Evid 1236); Prior Recollection Recorded (Evid 1237); Prior Identification (Evid 1238); Spontaneous or contemporaneous statements (Evid 1240, 1241); Statement of declarant’s then existing mental or physical state (Evid 1250); Statement of declarant’s previously existing mental or physical state (Evid 1251).