Electronic Footprints May Lead to Liability
The recent crash of an MBTA bus that injured several people is a valuable reminder about the electronic “footprints” that are increasingly important in proving or defending civil lawsuits. According to news reports, the bus driver was captured on security video using her cell phone–while the phone itself apparently showed no calls or texts at the time of the accident.
From to MBTA to Aaron Hernandez to the ordinary slip and fall in a department store or supermarket. litigants are finding that videotapes can make or break their cases. Any lawyer handling a case involving an incident in a public space would be remiss if he didn’t go looking to see if the event was captured on film. In the case of the MBTA bus, eight cameras on board showed various angles that permitted investigators to confront the driver with visual evidence of cell phone use.
And cell phones themselves are treasure troves of information. The device itself contains information about incoming and outgoing texts, emails and phone calls–again, a source of information that can’t be ignored in an automobile case. Even in other types of cases, the phone may provide important evidence of distraction: was that pedestrian texting while walking or crossing the street? On a more sophisticated level, many phones have GPS tracking information that can pinpoint their location at specific points in time. And many people reflexively snap a photo when something interesting or unusual happens. Sometimes these random shots even end up on YouTube,
The surprising thing isn’t that so much electronic information is available, but that so many people conduct themselves with apparent disregard for its availability. Did the bus driver not realize that her every action was captured on film? Do drivers who text not understand that most middle school students could uncover the time of incoming and outgoing messages? Probably not–it’s much more likely that these people simply don’t think that anything will go wrong, and they’ll never get caught.
And so the careful lawyer will aggressively seek out this evidence, both from his own client and from opposing parties. Electronic evidence may be more ephemeral than its documentary counterpart, and so it’s important for lawyers to consider early on what sources might be available and be sure they are preserved before they are destroyed–either purposefully or as a matter of routine. And it’s likewise important to remind clients about the pitfalls of either creating or destroying electronic evidence.
Electronic evidence, once important only in business cases, is playing an increasingly significant role in many types of cases involving individuals. Lawyers and clients should never forget that.