EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 29, 2013

Be Careful Who You Text (or Call): Early Dispatches from a New World of Text Messaging Evidence

The New Jersey case of Kubert v. Best is making headlines for holding that not only can a person who is texting and driving be liable for negligence when a crash results, but so too can the “remote texter”  – i.e., the person who is corresponding via  text message with the negligent driver.

Opinion here (as is almost always the case, the opinion, although not without flaws, is more thoughtful than media reports suggest).

In the case, the court holds that a sender of a text message can be liable for negligence when her message distracts a driver and “the sender knows that the recipient is both driving and will read the text immediately.”  The court nevertheless affirmed the trial court’s grant of summary judgment in favor of the “remote texter” because the plaintiffs failed to produce sufficient evidence to meet the above standard.

The case is interesting from an evidence perspective because it highlights the potential for text messages as a source of evidence, and the need for litigators to get ahold of text messages (early) in discovery.

Most basically, the case highlights the number of text messages that are out there, particularly in cases involving young people.  In her deposition, the remote-texter stated she “text[ed] more than 100 times per day,” explaining:  “I’m a young teenager.  That’s what we do.”  The remote texter and driver texted each other 62 times on the day of the accident, including an exchange just before the accident.

The above information, included in the opinion, suggests that the plantiffs obtained phone records from the texting service provider, but those records apparently only contained metadata, not content.  As the N.J. court emphasizes, what is “[m]issing from the evidence is the content of the [text] messages.”  It would be interesting to know why these records did not include content.  It is possible the content was no longer available at the time of the request, or the phone company declined to provide content (or felt prohibited from doing so by federal law prohibiting disclosure of stored communications).


Another potential source of the text message content would be the driver’s, or remote texter’s, phones.  Law enforcement personnel responding to the scene of what was, in this case, a horrific crash might have seized the driver’s phone as evidence – the opinion notes a new NJ criminal law that will apply to future cases involving injuries caused by texting drivers – and in so doing preserved the messages.  (My colleague Adam Gershowitz has a timely article coming out on cell phone seizures.  For those interested in the topic, you can find it here.)

Clearly if you are trying to meet the N.J. standard, the content of the pertinent text messages would be a critical and easily admissible source of evidence. 

Back to the substantive law, the standard set by the majority in this case seems to be accurately described by the concurring judge as a “high . . . bar” that ”will rarely be met”  (although it may still be frequently litigated).  But the standard seems equally applicable to cell phone calls, for which it may be easier to establish both that the remote-caller knew the driver was on the road, and was responding to the call while driving. . . .

- JB


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