Discovery of Cellphone Information

Posted in Legal Alerts, Newsletters - 2020 on August 27, 2020

Yesterday, the Third District Court of Appeal issued an important opinion relating to the discovery of cellphone information.  In Aguila v. Frederic, 45 Fla. L. Weekly D2043 (Fla. 3d DCA, Aug. 26, 2020), the appellate court quashed a trial court order compelling disclosure of discovery relating to a civil defendant’s possession and use of his mobile phone during a crash that gave rise to wrongful death litigation.  

In Aguila, the Estate sought production of the defendant’s phone logs for the hour surrounding the crash, including records disclosing his incoming and outgoing calls, emails, and text messages.  The defendant objected to the discovery on the grounds that it would violate his Fifth Amendment privilege against self-incrimination.  The trial court overruled the objection, and the defendant sought appellate review through a petition for certiorari. 

The appellate court first addressed the scope of the Fifth Amendment privilege against self-incrimination and noted that it is well-settled that the privilege may be asserted during discovery “if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.”  The Court noted that the “link in the chain” is not limited to statements but may encompass the production of other evidence, and it further noted that a litigant may raise the Fifth Amendment privilege if the response to the discovery raises a “realistic possibility” that it may be used against him or her.  

In this case, there was an open criminal investigation into the circumstances of the crash, and the applicable statutes of limitation had not run.  Therefore, the Court found, the defendant harbored a “reasonable fear of prosecution” sufficient to warrant application of the Fifth Amendment. 

Having found that the defendant could potentially be the subject of criminal charges, the Court then analyzed whether the discovery sought in the civil litigation could be evidence in any future criminal proceeding.  Because texting and emailing while driving are illegal in Florida, the Court found that evidence establishing that the defendant was engaged in this activity could very well furnish a “link in the chain of evidence” of criminality and, accordingly, the defendant was entitled to raise the Fifth Amendment privilege in response to discovery seeking information relating to his cellphone use at the time of the crash. 

Significantly, in a footnote to the opinion, the Court noted that, while the defendant was entitled to raise his Fifth Amendment privilege in response to the discovery, the Estate was likewise entitled to seek other remedies to compensate it for its inability to obtain what might prove to be key discovery in the civil litigation.  One possible remedy could include an adverse inference that could be drawn from the defendant’s failure to produce information that might incriminate him or her. Whether that remedy is warranted would depend on whether the litigant could obtain the information from other sources and whether that information is, in fact, key evidence in the civil case.