A Guide for Attorneys in Personal Injury and Commercial Vehicle Crash Litigation
Cell phone call detail records (CDRs) are a staple of modern litigation, especially in personal injury and commercial vehicle crash cases. Attorneys on both sides of the aisle—plaintiff and defense—routinely seek these records to establish timelines, challenge alibis, or to support or refute claims of distracted driving. But while CDRs can be powerful, it is important to understand their limitations as well as their strengths.
A recent poll asked: What do cell phone call detail records not show? The four options were:
- Call or text content
- App or internet activity
- Hands-free device use
- Who physically used phone
Each of these limitations was correct under certain circumstances, and they can have a significant impact on your case strategy. In this article, we’ll break down what CDRs can and cannot reveal, explain why these gaps matter in litigation, and offer practical tips for attorneys handling commercial vehicle crash cases.
1. Call or Text Content
What’s Missing:
CDRs provide a wealth of metadata—such as the numbers involved, the date and time of the call or text, and the duration of the communication. However, they do not include the actual content of calls or text messages. In other words, you’ll know that a call or text occurred, but not what was said or written.
Why It Matters in Litigation:
The absence of content can be a double-edged sword. On the one hand, CDRs can establish that two parties communicated at a critical time, which may be enough to support or challenge an alibi. On the other hand, without the content, you can’t prove the substance of the conversation. For example, in a commercial vehicle crash case, you might see that a driver exchanged texts just before a collision, but you won’t know if those messages were work-related, personal, or even automated notifications. The records do not indicate whether or not the inbound messages were read.
Legal Implications:
Courts generally require more than just the fact of communication to establish liability or intent. Without content, it’s difficult to prove distraction, admissions, or instructions that may be relevant to the case. If content is essential, attorneys may need to seek it from the device itself, a backup, or through discovery from the other party—bearing in mind privacy and admissibility concerns.
2. App or Internet Activity
What’s Missing:
CDRs do not show which apps were used or what internet activity occurred on the device. While some records may indicate that data was transmitted, they won’t specify whether the user was browsing the web, using a navigation app, streaming music, or engaging with social media. The records simply show the number of bytes up and down during a data connection session.
Why It Matters in Litigation:
In distracted driving cases, proving that a driver was using a specific app (like Facebook, YouTube, or a GPS app) at the time of a crash can be crucial. CDRs might show a spike in data usage, but they won’t reveal what app was responsible or what the user was doing online. This limitation can make it difficult to directly tie phone use to distraction or negligence.
Legal Implications:
To obtain app or internet activity, attorneys often need to pursue a forensic examination of the device itself. This process can be more invasive and may require a court order, especially if privacy concerns are raised. Even then, some app data may be encrypted or deleted, making recovery challenging.
3. Hands-Free Device Use
What’s Missing:
CDRs cannot indicate whether a call was made using a hands-free device (such as a Bluetooth headset, speakerphone, or a vehicle’s integrated infotainment system) or if the phone was held in the user’s hand.
Why It Matters in Litigation:
Many states have laws that distinguish between handheld and hands-free phone use while driving. In commercial vehicle crash cases, this distinction can be critical for establishing negligence or compliance with regulations. If a driver claims he or she was using a hands-free device, CDRs alone cannot confirm or refute this assertion.
Legal Implications:
Without evidence of how the call was made, it’s difficult to prove a violation of hands-free laws or company policies. Attorneys may need to rely on other evidence, such as dashcam footage, eyewitness testimony, or admissions from the driver. In some cases, the device itself, vehicle telematics or infotainment system logs may provide additional clues.
4. Who Physically Used Phone
What’s Missing:
CDRs do not identify the person who physically used the phone at the time of a call or text. They only show activity associated with a particular phone number or device.
Why It Matters in Litigation:
In commercial vehicle cases, it’s not uncommon for multiple people to have access to a company phone or for a driver to lend their phone to a passenger. CDRs can show that a call or text was made, but not who actually initiated or received it. This limitation can create ambiguity about responsibility or fault.
Legal Implications:
Establishing who used the phone may require corroborating evidence, such as surveillance footage, biometric data (like Face ID or fingerprint unlock logs), or testimony from witnesses. In some cases, the pattern of communication or the context of the call may help infer the user’s identity, but this is rarely definitive. It is a good idea to have the driver establish the number of occupants in the vehicle early in the case. This can be done through interrogatories or depositions. Once a driver admits that he or she was the only person in the vehicle it will be difficult for the driver to say that someone else was using the phone.
Tips for Attorneys: Making the Most of CDRs in Litigation
- Understand the Limits:
Don’t overstate what CDRs can prove. Be clear with clients, courts, and juries about the difference between metadata and content. - Corroborate with Other Evidence:
Use CDRs in conjunction with other forms of evidence—such as device forensics, dashcam footage, telematics, or witness statements—to build a more complete picture. - Request Device Forensics When Needed:
If app usage, message content, or user identity is critical, consider seeking a forensic examination of the device. Be prepared to address privacy and proportionality concerns in your motion. - Challenge Overreaching Claims:
If opposing counsel tries to draw conclusions from CDRs that aren’t supported by the data (such as assuming distraction from a data session), be ready to challenge these assertions with expert testimony or technical analysis. - Educate the Court:
Many judges and jurors are unfamiliar with the technical nuances of CDRs. Be prepared to explain what the records do and do not show, and why certain gaps exist. - Preserve Evidence Early:
Carriers may only retain CDRs for a limited time. Send preservation letters as soon as possible to avoid losing critical records. Verizon maintains the records the shortest time of any carrier, which is one year. Set goals to identify and preserve critical phone numbers within one year of the incident.
Conclusion
Cell phone call detail records are a powerful tool in
personal injury and commercial vehicle crash litigation, but they are not a
silver bullet. Understanding what CDRs do not show—such as call or text
content, app or internet activity, hands-free device use, and the identity of
the user—is just as important as knowing what they do reveal. By recognizing
these limitations, attorneys can avoid overreaching, focus their discovery
efforts, and build stronger, more defensible cases.
For attorneys on both sides of the aisle, the key is to use CDRs as one piece of a larger evidentiary puzzle. When combined with other forms of digital and physical evidence, CDRs can help reconstruct events, challenge assumptions, and ultimately serve the interests of justice in personal injury and commercial vehicle crash cases.