In the moments immediately following a car accident, you will likely reach for your phone to report the accident and call your insurance company. However, your smartphone can also provide an extremely valuable digital trail of information known as “metadata.” In today’s digital age, this data has become one of the most powerful tools for uncovering the truth about the accident and identifying the negligent party.
As one of the few states that follow the strict “contributory negligence” rule, which bars recovery of damages if you are found to be even 1% at fault, understanding metadata is particularly important in Virginia car accident cases. If you were injured in a car accident in Virginia, do not hesitate to contact an experienced car accident lawyer, who will examine all physical and digital evidence, ensure that your legal rights are protected, and pursue the maximum damages to which you are entitled.
What Is Cell Phone Metadata?
Metadata, or “data about data,” refers to non-content, time-stamped data about your cell phone’s activity. Rather than showing what you said or wrote, metadata provides valuable information about the activity itself. It is often described as the digital envelope that holds your message. The following are examples of cell phone metadata:
- The time a text message was sent or received
- The time a phone call was sent or received
- The approximate location of a phone
- Internet activity timestamps
- Whether an app was opened or used
- Bluetooth connections
- GPS location records
- Device movement information
How Does Cell Phone Metadata Prove Negligence?
In Virginia, the stakes are particularly high when it comes to proving negligence. In addition to photos from the accident scene, witness statements, and a copy of the police report, your cell phone metadata can provide the evidence you need to prove that the other driver was at fault for causing the accident. The following are examples of how metadata can help prove negligence in a car accident case:
Distracted Driving
This continues to be one of the leading causes of car accidents in Virginia and across the country. One moment of distraction can have devastating consequences if there are other motorists or pedestrians in the vicinity. While the driver who caused the accident may insist that they were not distracted, their cell phone metadata may show otherwise. For example, it may show that the other driver was engaging in the following behaviors at the time of the accident:
- Sending or reading a text message
- Watching a video
- Browsing the internet
- Using social media
- Playing video games
- Shopping online
Verifying Speed
GPS data includes speed information, so if the other driver was speeding at the time of the accident, the cell phone’s metadata will verify this information.
Drowsy Driving
If the at-fault driver was working for a rideshare company, delivery service, or a truck company, the location metadata can show how many hours the motorist had been driving without taking a break.
Location Information
Smartphones record location information through the GPS service, app, or wireless connection. When combined with other evidence, this can help prove that the other driver was at the scene of the accident when it occurred.
In addition to proving negligence, a cell phone’s metadata can support your claim and prove that you were obeying the rules of the road. For example, your cell phone records can show that there were no phone calls in progress, no text activity, app activity, or internet usage in the moments leading up to the accident.
How Can Social Media Activity Impact Your Case?
While metadata from the at-fault driver’s cell phone, including social media activity, can help prove that they were active on social media at the time of the accident, your social media activity can also be used against you if you are not careful. Insurance companies will comb through all of your accounts, looking for any information they can use to deny your claim. The following are examples of tactics that insurance companies will use:
Contradicting Injury Claims
If you claimed to have suffered a serious back injury from the car accident, but you post pictures on your social media of you going on a hike with friends, dancing at a wedding, or playing with your kids at the park, insurance companies will use this information to argue that you are either faking or exaggerating your injuries.
Providing an Alternate Timeline
Even a simple post on Instagram, or a “check-in” at a specific location, can be used to challenge your account of the events leading up to the accident. For example, if you made a quick Facebook post around the time of the accident, this can be used to challenge your account of the events and place some of the fault on you.
Revealing Prior Medical Conditions
If there are old posts on any of your platforms where you discuss a previous injury or health issue, the insurance company may argue that your current symptoms are related to your pre-existing condition and not the accident.
Admissions Against Interest
Even a seemingly innocent post can be used against you by the insurance company. For example, if you post a comment about how you were coming off of a long shift at work, and you barely got any sleep before the accident, this could be interpreted as an admission of partial fault. Considering Virginia’s strict contributory negligence rule, and the fact that you could be barred from recovering any damages if you are found to be even 1% at fault, it is highly recommended that you avoid posting on any of your social media accounts and activate privacy settings on all of your platforms until your case is resolved.
How Is Cell Phone Metadata Obtained?
Cell phone metadata often provides evidence that the other driver was negligent. However, cell phone companies generally do not simply hand over a customer’s records. There are privacy concerns to consider when using cell phone evidence in court. In the 2014 Supreme Court decision in Riley v. California, the court ruled that cell phone data could not be accessed without a warrant. Car accident lawyers may not look through a person’s private phone data without a valid reason, and judges often limit the scope of the metadata request.
There are formal legal procedures in place that must be followed to obtain this evidence, including the following:
- Request for production. Your car accident lawyer will serve the opposing party with a “Request for Production of Documents and Electronically Stored Information (ESI).” This request will include data usage statements, cell phone bills, and possibly a forensic image of the phone.
- Subpoena duces tecum. To secure records from Verizon, or any other mobile provider, your car accident lawyer will need to issue a subpoena, which will compel the company or the other motorist to produce the requested records. This may include call logs, text messages with timestamps and numbers, and data usage history for a specific period of time.
- Motion to Compel. Your car accident lawyer may file a Motion to Compel if the opposing party objects to the subpoena or refuses to produce the data that was requested. The judge will determine whether the request is reasonable and if the information is relevant to the case.
- Expert digital forensics. In some cases, digital forensics experts may be used to analyze phone data, particularly if the case hinges on precise activity or timestamps. For example, a digital forensics expert can extract hidden system logs that show precisely what time the screen was turned on, when an app was opened, or when the keyboard was used.
How Will a Car Accident Lawyer Help Preserve Cellphone Metadata?
If you were injured in a car accident and you intend to file a personal injury lawsuit, a dedicated car accident lawyer will take the following proactive steps to protect your legal rights and obtain the physical and electronic evidence necessary to prove that the other motorist was responsible for causing the accident:
- Early case assessment. A car accident lawyer will evaluate all sources of digital evidence from the vehicles involved in the accident.
- Preservation letters. Also known as “Spoliation Notices,” this notifies all relevant parties of their obligation to retain evidence.
- Rapid investigation. A car accident lawyer will work with investigators to secure video footage before it is overwritten.
- Technical expertise. A car accident lawyer will collaborate with experts to download and interpret cellphone metadata.
- Litigation readiness. If the other party does not cooperate with the preservation of cellphone metadata, a car accident lawyer will take the necessary legal action to prevent the loss of critical evidence.
An Experienced Virginia Beach Car Accident Lawyer at Anchor Legal ®Recovers Valuable Digital Evidence to Help Your Car Crash Case
If you were injured in a car accident, a Virginia Beach car accident lawyer at Anchor Legal will protect your legal rights and recover the evidence necessary to prove that the other motorist was at fault, including cellphone metadata. We will assist you with every step of the claims process and pursue the maximum financial compensation you deserve. To schedule a free consultation, call today at 757-LAW-0000 or contact us online. Located in Virginia Beach, we proudly serve clients in the surrounding areas.