Must an Accident Victim Provide Cell Phone Data to Show She Wasn’t Driving Distracted?

Hiring a trusted Atlanta personal injury lawyer Atlanta residents trust is more critical than most people understand.  A really good Atlanta personal injury lawyer is going to know how to attack and defend in a case.

Here’s a recent example that highlights what we mean.

A trucking company recently asked a Georgia federal court to rule on a “Motion to Compel Plaintiff’s Cellular Phone Information,” in a case arising from a semi accident that occurred in September 2019.

The company wanted access to her phone records to see if she was on her cellphone and driving distracted when she hit the semi. The plaintiff argued that the motion to compel should be denied because it was untimely.


The plaintiff alleged that she was severely injured and sought damages for medical and hospital bills, lost wages, pain and suffering, and permanent impairment. But the trucking company said she rear-ended their tractor-trailer without braking—they wanted the cell phone records to show she wasn’t paying attention and that the accident was her fault.

The Atlanta trucking company said that the plaintiff produced her severely damaged phone in discovery but that it was so badly damaged, it had to be reconstructed. After the phone was rebuilt, the trucking company was told that a PIN was required to access the phone. They requested the PIN from Plaintiff’s counsel, and after some delay, he gave them three possible PINs—but none of them worked. As a result, the trucking company was unable to access the phone’s contents. They asked the court to compel the plaintiff to provide the correct PIN to unlock her phone so they could discover “information central to the issues of this case – what caused the subject collision[,]” wherein Plaintiff rear-ended a Defendant’s tractor-trailer allegedly without pressing her brakes.

Compliance with the Judge’s Discovery Order

U.S. District Judge W. Louis Sands, Sr. wrote that his initial Discovery and Scheduling Order stated:

[A]ll motions made under Rule 37 must be filed within twenty-one days of the date on which the response(s) was due, or twenty-one days of receipt of an allegedly inadequate response or other alleged violation of Rule 37, and no later than twenty-one days after the close of discovery, whichever first occurs.

This is known as the Court’s “21/21/21 Rule,” and Judge Sands said it’s strictly enforced.

The Trucking Company said their motion was timely and explained that they first learned that the PINs provided by the plaintiff didn’t work on August 3, 2021—the same day that they emailed her counsel for the correct PIN. They didn’t get a response to their email and filed this motion to compel within 21 days of the date they learned the PINS didn’t work. As a result, the motion to compel wasn’t untimely.

Judge Sands wrote that the record clearly indicated that the Trucking Company needed a PIN to access Plaintiff’s phone for their defense in this case. It couldn’t get the PIN elsewhere, so it sought the phone and PIN during the discovery period. On the day that the Trucking Company learned the PINs didn’t work, they requested the correct PIN from the plaintiff’s counsel but received no response. Then the Trucking Company filed its motion 20 days after their most recent request for the PIN, in compliance with the Court’s strictly-enforced 21/21/21 Rule.

Moreover, the judge reasoned that the information sought would impose a minimal burden and no harm to the plaintiff. Under these circumstances, good cause existed to grant the motion.

What If the Plaintiff has Forgotten Her PIN?

The plaintiff’s only argument against the merits of the motion to compel was in effect that she might not recall her PIN. She argued that a party can’t produce documents it doesn’t have. However, she provided possible PINs to unlock the phone. The judge held that the discovery sought was clearly relevant and proportional to the needs of this case, considering the relevant factors, and it should be produced if known. Incidentally, the judge noted that there was no sworn discovery response on record stating that the plaintiff forgot her PIN.

The defendants’ motion to compel was granted, and the plaintiff was ordered to provide the correct PIN to unlock the phone immediately so that the Trucking Company could review the data. Handley v. Werner Enters., 2021 U.S. Dist. LEXIS 187815 *; 2021 WL 4491716 (M.D. Ga. September 30, 2021).

Speak to an Experienced Atlanta Truck Accident Attorney

Hiring a great lawyer as opposed to an average lawyer can make the difference in a case. You want a great personal injury lawyer Atlanta residents have relied in on other cases. You are welcome to call any of our experienced Atlanta personal injury lawyers  for a free consultation at Tobin Injury Law.   Our team knows how to attack and how to guard.

You can contact an Atlanta truck accident attorney 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or using our online contact form.