Due to the rise in suspicious and fraudulent claims, many special investigative unit claim handlers routinely request cellular telephone records in first-party claims to assist with their investigation into suspicious activities. Once the litigation process begins, claim handlers understand the importance of cellular telephone records to determine if cellular telephone use was a factor in causing an accident. Often their attorneys will have requested, as part of standard interrogatories propounded upon opposing counsel, all of claimant’s cellular telephone numbers and carriers. The purpose of this request is so a subpoena can be issued for the necessary records for review.
However, before a lawsuit is even filed, a review of the cellular telephone records can benefit an investigation. For example, such information could reveal whether cellular telephone use was a contributing factor or cause of the accident. If so, early access to such information would help claim handlers determine whether to defend or compromise a claim. But all too often claim handlers do not obtain cellular telephone records before a lawsuit is filed.
The lack of subpoena power prior to a lawsuit being filed is a big obstacle in obtaining cellular telephone records. Regardless, a request for records should be made upon the claimant or their attorney, keeping in mind many individuals have more than one cellular telephone. Be prepared for an objection, but just as a recorded statement is almost always required prior to a voluntary settlement offer, claim handlers should take the same position regarding production of the cellular telephone records. The records will be most likely produced, especially if cellular telephone use is not a factor in the accident.
For first-party and uninsured motorist claims, the claim handlers may use the “cooperation” and “production of information/evidence” provisions of policies to obtain cellular telephone records. Claim handlers should use these provisions as leverage to entitlement to records to complete their investigation and evaluation of the claim.
