Your Cell Phone as a Beacon

Last night was a pretty typical weeknight at my home, I drove home from work
and filled up with gas before I got home, I left my house again at around 5:30
to take my son to his Karate lesson. While I was out I stopped by the local
library to return some books and then swung over to the dry cleaners to pick up
my shirts and slacks and some stuff for my wife. I picked up my son from his
lesson and we stopped off at the grocery store to pick up some bread and milk on
our way back to the house.

Now, you aren’t the first people to know my whereabouts that night. Because I
had my cellular phone with me, the cell phone company that provides my cellular
services knew where I was at the entire time. They tracked me with my cellular

How is this possible?

It is possible because people who use their cell phone need to be able to make a
call whenever and wherever they may be located at the time they dial the number
on their phone. Therefore, the cellular companies must be able to route the call
to the nearest cellular tower, which in turn sends your call to the satellite in
space, which sends your signal to the person you are calling. The tower that
handled the call is typically logged (and stored indefinitely) on the wireless
provider’s computers, though it’s not noted on the customer’s monthly bill. In
order for the cell phone company to know what tower you are at, they must be
able to track the signal from your cell phone when it is on.

In the expanded age of advanced communication and the literally thousands of
issues of privacy that it has since spawned, many people would be horrified to
learn that they can be tracked by the phone company via their mobile phone. The
phone companies claim this is a integral part of the service they provide,
privacy advocates say that this is just another way large corporations have
invaded our lives.

Wading into the fray over this controversy concerning your cell phone is another
larger and important player: law enforcement. Law enforcement agencies are now
utilizing the technology of tracking cellular signals to catch criminals and
terrorists. A few cases of dangerous criminals being tracked and caught while on
their telephones have been documented and law enforcement is now fighting with
the cellular companies to ensure its continued use.

Have we lost our privacy by cell phone tracking or have we just gained a
valuable tool for law enforcement to use in keeping us safe? Do the cell phone
companies need to know where you are in order to provide their service, or have
they found, as some privacy advocates claim, a backdoor into your life, your
locations, your shopping habits?

Part One: Mobile 911.

According to the TechTV Show “Talkback”, Cell phones show where you are, and
that is simply part of their design. Without the ability to pinpoint where the
signal from your phone is coming from, calls could never be connected. Because
cell phones decry the use of wires, and the users making the calls are often on
the move, the call and the receiving signal are not at a fixed location.
Therefore, the signal from the cell phone must be tracked.

Cell phone service areas are divided into “cells,” each of which is serviced by
a base station. When you make a call, your cell phone selects the strongest base
station it can find, which is usually the closest station to you.

If you move out of the coverage of one base station, your phone switches to the
next strongest available base station (which usually means you move into a new
cell). The system always knows your location relative to the nearest cell.

This occurs even when your phone is on but not being used. For efficiency’s
sake, an idle cell phone sends out a message on the access channel so that the
system will know where to direct the page if you get an incoming call. The
system knows where you are. In an urban area, each tower covers an area of
approximately 1 to 2 square miles, so a caller’s general location is fairly easy
to pinpoint.

The proliferation of cellular phones and their usage gave birth to a very unique
problem: How would emergency operators track callers who called 911 on their
mobile phone? Dialing 911 from a traditional, wire-based telephone, allowed the
operator to track where the call was being placed, so that an emergency response
could be sent. On mobile phones, the people calling in the emergency had no idea
where they were, and the 911 operators had no way of exactly pin pointing where
the calls where originating.

Enter e911. According to the web site “Webopedia” , E911 is “short for Enhanced
911, a location technology advanced by the FCC that enables cellular phones to
process 911 emergency calls and enable emergency services to locate the
geographic position of the caller. When a person makes a 911 call using a
traditional phone with ground wires, the call is routed to the nearest public
safety answering point (PSAP) that then distributes the emergency call to the
proper services. The PSAP receives the caller’s phone number and the exact
location of the phone from which the call was made. Prior to 1996, 911 callers
using a mobile phone would have to access their service providers in order to
get verification of subscription service before the call was routed to a PSAP.
In 1996 the FCC ruled that a 911 call must go directly to the PSAP without
receiving verification of service from a specific cellular service provider. The
call must be handled by any available service carrier even if it is not the
cellular phone customer’s specific carrier. Under the FCC’s rules, all mobile
phones manufactured for sale in the United States after February 13, 2000, that
are capable of operating in an analog mode must include this special method for
processing 911 calls. “

In an article entitled “How cell phones reveal your location” published on the
Slate ( web site, with e911, emergency operators were able
to track calls from wireless phones in less to one or one half of a mile from
where the call originated. The technology was so successfully that the
government made it a law that all cellular phones carry the technology that
enables calls to be tracked. This law is called the Wireless Communications and
Public Safety Act of 1999 (911 Act) and signed into law by President Clinton on
October 26, 1999. According to the law, 95 percent of all cell phones must be
E911 compliant by the end of 2005.

In compliance with the new law, and to better improve the service with its
customers, many cell phone handsets are now equipped with Global Positioning
System chips, which determine a caller’s coordinates by receiving signals beamed
down from a satellite array. The chip factors together the signals’ different
arrival times to calculate the phone’s coordinates, using a mathematical process
known as trilateration. At present, however, GPS data is typically not recorded
for non-emergency purposes, unless the user has explicitly signed up for a
location-based service.

Part Two: The Hacker and the Terrorist

Kevin Mitnick was a hacker. That is to say, he was king of all the hackers.
Mitnick, “America’s Most Wanted Computer Outlaw,” eluded the police, US
Marshalls, and FBI for over two years after vanishing while on probation for his
1989 conviction for computer and access device fraud. His downfall was his
Christmas 1994 break-in to Tsutomu Shimomura’s computers in San Diego,
California. Shimomura just happened to be the head of computing technology at
the San Diego Super Computer Center. Less than two months after having his
computers hacked, Shimomura had tracked Mitnick down after a cross-country
electronic pursuit. Mitnick was arrested by the FBI in Raleigh, North Carolina,
on February 15th, 1995.

Mitnick was charged in North Carolina with 23 counts of access device fraud for
his activities shortly before his arrest. In California, he was charged with an
additional 25 counts of access device, wire, and computer fraud. On March 16,
1999, Mitnick plead guilty to five of these counts and two additional counts
from the Northern District of California. He was sentenced to 46 months and
three years probation. He was released from prison on January 21, 2000, being
eligible for early release after serving almost 60 months of his 68 month

How was the FBI able to capture “America’s Most Wanted Computer Outlaw”? By
tracking down a signal from his cell phone.

Luke Helder was going to set off some bombs. Specifically, he was going to set
off bombs in mailboxes across the United States until the locations of his bombs
made a “smiley face” pattern across the map of the U.S. He probably would have
accomplished his morbid feat had he not made one crucial mistake; he turned on
his cell phone.

According to USA Today, as soon as he activated it, FBI agents quickly
triangulated his position between two rural towns and had him in handcuffs
within an hour, according to Nevada authorities. The fact that another motorist
spotted Helder in passing helped authorities, but the cell phone signal was a
dead giveaway

“We got a call from the FBI at approximately 3:20 p.m. that the cell phone that
(Helder) had been known to have had been activated somewhere between Battle
Mountain and Golconda,” said Maj. Rick Bradley of the Nevada Highway Patrol. “We
started hitting Interstate 80.”

Bradley said tracking down Helder without the pinpoint location provided by the
FBI would have been tougher, given the sprawling region.

“It’s really a rural area. There’s not that much police presence,” Bradley said.

Cell phone triangulation is a well-known tracking method within the wireless
industry, said Michael Barker, an equipment sales manager for Cell-Loc, based in
Calgary, Alberta. His company provides tracking services to help people who are
incapacitated and unable to dial for help.

and out of cell tower range.

According to Slate, Location data extrapolated from tower records is frequently
used in criminal cases. It was vital, for example, to the prosecution of David
Westerfield, who was convicted of murdering 7-year-old Danielle van Dam in San
Diego. The killer’s cell-phone usage revealed a bizarre travel pattern in the
two days following the girl’s disappearance, including a suspicious trip to the
desert. In cases like this, wireless providers will not release a user’s records
without a court order, save for rare instances in which a kidnapping has taken
place and time is of the essence.

Domestic crime is not the only arena of law enforcement that is utilizing the
tracking of mobile phone signals, the FBI and CIA have been using this technique
in an effort to capture public enemy number one: Osama Bin Laden.

Author Dan Campbell, writing in the October 2001 issue of Telepolis Magazine,
describes how the world’s most wanted man, coordinated his attacks via his
mobile phone.

“Between 1996 and 1998, when the America’s embassy in Kenya was bombed, the FBI
found that Osama bin Laden and his staff had spent nearly 40 hours making
satellite phone calls from the mountains of Afghanistan. The calls, which can be
sent and received from a special phone the size of a laptop computer, were
relayed via a commercial satellite to sympathizers in the west.

The satellite phone appears to have been a huge convenience for the world’s most
wanted terrorist. He was billed for thousands of minutes of use over two years,
those records indicate, and used it to issue a fatwa in February 1998 that
called on Muslims to kill Americans, including civilians, anywhere in the world.

Even now, as US forces move in for the kill, bin Laden’s satellite phone has not
been cut off. But calls to the terrorist leader are going unanswered. His
international phone number – 00873 682505331 – was disclosed during a trial,
held in New York earlier this year. Calls to his once-active satellite link now
hear only a recorded messages saying he is “not logged on”. “

Indeed, when bin Laden associates went to trial in April on charges of bombing
U.S. embassies in Africa, the prosecution used billing records for calls from
that phone to connect them to bin Laden–but not intercepts of conversations.

Apparently, the FBI are not the only individuals aware of the fact that the
tracing of mobile phone signals can be used to track down an individual’s
location. With American forces closing in on him during the battle of Tora Bora
in late 2001, Osama bin Laden employed a simple trick against sophisticated
United State spy technology to vanish into the mountains that led to Pakistan
and sanctuary.

According to CBS News, A Moroccan who was one of bin Laden’s long-time
bodyguards took possession of the al-Qaeda leader’s satellite phone on the
assumption that US intelligence agencies were monitoring it to get a fix on
their position, said senior Moroccan officials, who have interviewed the
bodyguard, Abdallah Tabarak.

Tabarak moved away from bin Laden and his entourage as they fled, using the
phone to divert the Americans and allow bin Laden to escape. Tabarak was later
captured at Tora Bora in possession of the phone.

The use of Cell phone triangulation and the tracking of other mobile signals
appear to be an effective weapon for law enforcement, one that many agencies are
going to be reluctant to give up. But does the use of technology come at a
price: the sacrifice of privacy and civil rights of the people using mobile

Part Three: Cell Phone Commercials

The ability to track a person using their cell phone has not been lost on
marketing professionals looking to find a new avenue into consumer buying habits
and preferences. The ability to track individuals’ movements through their
mobile signal has very appealing commercial potentials. For example:

∑ Your phone will be able to tell you where the nearest hospital, shopping mall,
or McDonald’s is located

∑ Merchants could automatically send you location-based advertising and special
offers when their technology senses you’re near their stores

∑ If you’ve pre-loaded their phone numbers and personal information, your phone
could alert you when a friend or family member is in the area

“Advertisers are eager to use location services to alert you when you pass near
a store that might be of interest. Such services are likely in some form, but
carriers are proceeding cautiously. They’re aware you may not want to see ads
for McDonalds every time you pass by the golden arches. Carriers don’t want to
annoy users because it’s so easy to switch providers”, says Allen Nogee, a
senior analyst at Cahners In-Stat Group said on the CNN web site.

The idea of advertisers and law enforcement knowing where you are at any given
moment and where you have been has naturally rubbed privacy-advocate groups the
wrong way. While there is some upsides for the use of this technology, privacy
groups say the potential for abuse of this technology is very high and very real
and they would like to see some provisions built into cell-phone tracking laws
that allow for the privacy of the consumer not to be compromised.

“There certainly need to be better emergency procedures [for cell-phone calls],”
says David Sobel, general counsel for the Electronic Privacy Information Center
in Washington, D.C during an interview with ABC news. “But once the technology
exists, there has to be some way for users to control how the info can be used.”

Sobel says while the FCC mandated the E911 program, federal legislators haven’t
put into place how that information may be used or who would have access to it.

“The Justice Department and FBI do routinely get information from cell-phone
service providers,” says Sobel. But, “There are lingering question on what the
legal standard is to be used to get location information from cell-phone
providers. There is nothing in federal law that addresses that issue.”

According to Sobel, another large privacy issue that might be at stake is not
only the information that is being delivered by using this technology, but the
technology itself might be violating the privacy of mobile communications just
by the way the technology works.

“The e911 rules enacted by the Federal Communications Commission govern the
emerging form of telecommunications known as “packet mode” communication. Law
enforcement agencies already have the authority to demand information that
identifies a phone call as long as it is separate from the call’s contents.
However, with packet-mode communication technology, data containing the numbers
cannot be separated from data containing phone conversations. Thus when police
agencies demand phone number data, phone service providers will have to give
them data containing conversations as well,” said Sobel.

Sobel and lawyers from two other organizations are asking the U.S. Court of
Appeals in Washington, D.C., to block the FCC rules. “The FBI is seeking
surveillance capabilities that far exceed the powers law enforcement has had in
the past and is entitled to under the law,” Sobel said.

Similar legislation for the ability to track movements using mobile technology
has met with stiff resistance in other countries. According to ZDNET UK
( in the United Kingdom, civil liberties advocates are
outraged at the implications of the newly passed Regulation of Investigatory
Powers Act, which could allow British law enforcement agencies to trace the
movements of mobile phone users with a minimum of accountability. Privacy
advocates have vowed to have this law over-turned in this country, but in the
meantime, the British government plans to fully extend and incorporate this law
into British law enforcement, no matter what privacy groups say.

“The whole point of RIP (the Regulation of Investigatory Powers Act) is to
update surveillance,” a spokeswoman from the British Home Office said. “If you
haven’t broken the law then you’ve nothing to fear.”

Conclusion: Cell Phone Spam?

Law enforcement agencies, already beleaguered by an out of control handgun
problem and a across the board rise in crime in the United States, coupled with
the fact that they must now deal with the horrifying specter of terrorism in
their cities, will not be too quick to give up a powerful new weapon in catching
criminals, especially not one that will essentially tell them where they are
exactly. Any fight that privacy groups may put up will ultimately prove to be
futile to lawmakers in Congress, who want to be seen as giving law enforcement
every chance they can to be effective.

However, privacy groups have a legitimate point in their fears that a technology
of this sort is ripe to be exploited unless the lawmakers take action to limit
the very personal data offered by this tracking technology. Email is a perfect
example of a technology that, in its infant stages, was seen as revolutionary
new form of communication. Now, email systems are so overloaded with spam coming
in from not only the United States but also from Russia and Nigeria, that
congress has acted to implement new laws to stem the tide.

Cell phones now have the ability to send and receive photographs, how much
longer will it be before advertising, in full color begins to find its way to
your telephone? The outrage of having “cell-phone spam” may be so great that he
consumer uproar will cause any type of mobile technology to be severely limited
by law, perhaps even stripping out some of the positive aspects such as those
used by law enforcement.

Practical Tips to Obtain Defendant Driver’s Cell Phone Records In Car Accident Injury Lawsuits

Background: using cell phones while driving is an inherently unsafe: Everyone knows now that it is unsafe to drink and drive, but the effects of cell phone use while driving are perhaps even more devastating, because the use of cell phones while driving is so wide-spread. According to the a National Safety Council fact sheet, drivers using cell phones account for nearly 25 percent of all motor vehicle crashes annually. In fact, research has shown that driving while using a cell phone is comparable to the devastating effects that alcohol causes to the motoring public. See, A Comparison of the Cell Phone Driver and the Drunk Driver, Human Factors, Vol. 48, No. 2, Summer 2006, pp. 381-391. Sadly, 81 percent of driver have admitted to using a cell phone while driving, according to the National Safety Council fact sheet.

In bringing your motions to compel cell phone records, it is important to bring the above-referenced documents to the attention of the judge hearing your motion. It is also crucial to let juries know of these dangers, because it will affect how the jury views the defendant’s conduct, even in cases where the defense admits to liability in a rear-end collision. It is not enough to stipulate to liability and let the defendant escape accountability to the jury for the despicable nature of using a cell phone while driving. If our firm finds out that the defendant was using a cell phone, we will attach a punitive damages cause of action to the complaint, alleging that doing so was despicable conduct within the meaning of Civil Code section 3294. If you have clear facts showing that there was cell phone usage, by all means, include a punitive damages allegation with the original complaint, so that you are not forced to make a motion to amend your complaint to allege punitive damages.

Don’t get timed out: It is important to recognize the key defense that the defendants possess and neutralize that defense immediately: timing. It can often take 6 months or more to get cell phone records from the time that you first notice the deposition duces tecum until you have the records in your hands. In most aspects of a personal injury case, the defense will try to stall and delay the case until it is time for trial, and discovery has closed, leaving the plaintiff with holes in her case. That is particularly true with cell phone records. The defendant will claim to have forgotten his cell phone number and the name of his cell phone carrier. He will claim to have lost his cell phone records. The cell phone carrier will throw up road blocks, too. In most cases, the judge won’t let you get the cell phone records from the carrier until you have demonstrated due diligence in getting the records from the defendant himself.

As you will see in this article and the associated subsequent articles, there is a long process for seeking these documents through written depositions, written discovery, meet-and-confer letters, amended responses by the defense, followed by more meet-and-confer letters, and ultimately, your motion to compel. If you don’t lay the foundation, or move too quickly, the discovery judge will deny your motion to compel. So be sure to build into your discovery plan ample time to go through the whole process. Compelling cell phone records is like baking a layer cake; you have to build it one layer at a time.

Also, keep in mind that if you want to amend your complaint to allege punitive damages, California Rules of Court, Rule 3.1324, will require you to demonstrate good cause why your motion was not brought earlier. Don’t hand the defense an easy escape due to lack of diligence in bringing the motion to amend the complaint to allege punitive damages pursuant to Civil Code section 3294.

Start your hunt right away: Look for indications of cell phone usage on the part of the defense very early on in the case. Start with the intake with your client. Include a question about cell phone usage on the part of both your client and the defense in your intake questionnaire.

If your client knows that the defendant was using their cell phone, your client will usually tell you, because by now most people are aware that using a cell phone while driving is despicable conduct, particularly if the defendant was not using the phone in a hands-free way. If you client does not mention cell phone usage, be sure to ask your client about cell phone usage in the same way that you would screen for drunk driving, because, as mentioned above, cell phones are the new drunk driving and can change the entire course of the litigation, as we will see. Insurers are willing to waive liability and settle early where their insureds were using their cell phones at the time of the collision in the same way that they do with drunk driving cases.

Sometimes clients will have seen the defendant on their cell phone a few minutes before the incident happened, for example, if they were passing the defendant and were later rear-ended by the defendant, so probe your client’s memory as to the first time that they saw the defendant, and think about if they saw any signs of the defendant using the cell phone.

After speaking with your client, think about other sources of information about the collision. Look at the police report, of course, to see if the reporting officer noted cell phone use. Contact all of the witnesses listed in the report to see if they noticed the defendant using a cell phone. Be sure to ask your clients and the witnesses if they saw the defendant appearing to speak to himself, because even hands-free driving is distracted driving, and the above-cited studies show that a driver’s response time is reduced even with hands-free usage. As if they saw the defendant gesturing while driving, because of course many people will gesture with their hands while on the phone.

Even if your client and the witnesses are unable to state that they saw direct evidence of cell phone usage, such as the defendant holding a cell phone to his ear or talking to no one while driving alone, it is possible to infer cell phone usage where the defendant has no logical story to explain their odd driving behavior. For example, if your client sees the vehicle coming up on them from behind and failing to slow down, your client might not have time to focus their gaze on the driver before impact, but the fact that the driver doesn’t slow down is a flag indicating that the driver was distracted. Weaving is of course another example of distracted driving, as is odd variations in speed. You will need all of these facts to persuade a discovery judge that there are some indicia of distracted driving before the judge will let you compel the defendant’s cell phone records.

File suit early: If you see flags indicated distracted driving, file suit immediately. You will need to begin the process of investigation through formal discovery immediately, because insurers are going to fight this discovery battle tooth and nail, as they are aware that the public is disgusted with distracted driving, and that distracted driving will open up their insured’s personal assets, creating a conflict. Of course, it is exactly this kind of conflict that you want to create for the purpose of leveraging a decent settlement for your client.

If you see flags indicating distracted driving, consider serving a deposition notice on the defendant 20 days after service is effected on them, pursuant to California Code of Civil Procedure section 2025.210(b) which provides in pertinent part as follows:

2025.210(b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.

The prevailing wisdom is that you should serve form interrogatories by mail after receiving the defendant’s answer, but it is exactly that kind of supposed “common sense” that you want to avoid in these cases. You want to send the defense a signal that you are different, and they should not expect “the usual” from you in any aspect of this case. It also sends the defense a signal that you are not going to permit them to enjoy their primary defense tactic, that of stall and delay. This practice also gives you access to the defendant before the defense adjuster and defense attorney have had extra time to help the defendant formulate false testimony. In their haste to prepare an answer, the defense might not have time to screen the defendant for cell phone usage, and so the defendant might be unwary of the need to prevaricate about his cell phone usage.

After serving the complaint and summons, fax and mail the defense adjuster to let them know that service has been effected, and let them know that you expect a timely answer to the complaint. Then serve the deposition notice, and again fax and mail the defense with a letter saying that you expect the defendant to appear on the date noticed for the deposition. Make sure that you give yourself enough time to actually get the deposition notice served. Code of Civil Procedure section 2025.270(a) requires 10 days’ notice.

The defense attorney will likely phone you to say that there is a conflict in their schedule, but you should politely and persistently insist on an early deposition for the defendant. When the defense attorney asks what the rush is all about, tell them that it is the plaintiff’s job to move the ball, and that the defense should expect to see this pace continued all throughout the case. Do not, of course, talk about your interest in getting discovery of cell phone usage at this point. The defense will not understand why you are pushing the case so quickly, and it will make them start to question their assumptions about what is “normal” in a case, including their “usual” evaluation of the ultimate case value.

The purloined letter, hidden in plain view: You are going to want to include a duces tecum demand with your deposition notice. In that duces tecum demand, you are going to want to ask for cell phone records. Be sure to bury the request for the cell phone records in the middle of the demand somewhere, well after the usual request for photographs and statements of the plaintiff and witnesses, etc, unless you have alleged punitive damages in your complaint, in which case the cell phone usage will be front and center. Be sure to serve along with the deposition subpoena set of form interrogatories, a standard request for production of documents, a set of specially-prepared interrogatories, if that is needed in your case, and a request for admissions. All of these documents can be served any time that is 10 days after service of the summons on the defendant. See C.C.P. sections 2030.020, 2031.020, and 2033.020, respectively.

It is important to serve a standard set of requests for admissions, along with the deposition notice and the other documents. The requests for admissions should certainly ask the defendant to admit the facts of liability from your client’s perspective, and should ask them to admit the ultimate fact that the defendant is at fault for causing the collision. This is particularly true if the case is a rear-ender, because the defense attorney will oppose the motion to compel cell phone records on the basis of that the cell phones are not relevant in a rear-end collision. When the defendant denies liability in the request for admissions, as they inevitably will, you now have ammunition to show the discovery judge that liability is disputed, and therefore the cell phone records will go to the issue of fault.

Be thorough in deposing the defendant on how the collision happened: If you have spotted one of the flags of distracted driving, typically the defendant will not admit cell phone use. You will need to first lay the foundation for the erratic driving. Be sure to begin the deposition with a benign tone toward the deponent. Don’t clue them into the fact that you are going to press them later in the deposition, because they will become defensive, and they won’t give you the key facts that lay the foundation for the flags of distracted driving.

The defendant will typically admit that they rear-ended your client, if that is the case, but they will gloss over the facts leading up to the impact. You will definitely want to ask them when it was that they noticed that your client was stopped, and what they did to avoid the collision. You can ask them lead-in questions such as “it sounds like you were a bit distracted” or “it sounds like your attention drifted off of the road for a little bit.” Then, ask them if their windows in the car were rolled up or rolled down. Ask them if their radio was playing. Ask them if they had some trouble keeping their vehicle in their lane.

Then ask them if they were using their cell phone at the time of the collision. If they say no, ask them when the last time was that they used their cell phone before the collision. Ask them where they kept their cell phone. Was it attached to their belt? Was it in a purse or brief case? If there were other occupants in the defendants’ vehicle, be sure to set their depositions for a time immediately following the defendant’s deposition, so that the defendant will be clued into the fact that his fabrications might be contradicted by other sworn testimony.

Sample duces tecum demand in commercial driving cases: You can count on the defendant to be evasive in deposition. It is not uncommon for the defendant to say that they don’t remember their cell phone number or the name of their cell phone carrier! If that is the case, you will need to make sure that you have requested collision reports and bills of lading applicable to the shipment that the defendant was carrying, in case the driver’s cell phone number is there. Here is some language that would cover those items:

All written collision reports prepared by defendant Donald T. Driver pertaining to the subject collision.

All drivers’ time sheets, log books (regardless of form) involved in recording the subject tractor truck’s usage and mileage by all drivers in the 72 hours prior to the subject collision.

Don’t assume that the defense attorney will object to the collision report prepared by the driver. It might be that the defense attorney will need to use the collision report to refresh the recollection of the driver, and so might give up the collision report, rather than argue that it was an attorney-client communication prepared by the driver for the insurance adjuster to prepare for litigation.

Sample language for special interrogatories seeking the defendants’ cell phone info: If the defendant claims in deposition to have forgotten their cell phone number or the name of their carrier, you will need to serve specially-prepared interrogatories to elicit that information. Here are some sample questions:

State the name of all mobile telephone carriers used by defendant Donald T. Driver on the date of the subject incident which is the subject of this lawsuit.

State the name of any mobile telephone carrier with whom defendant Donald T. Driver had a contract for mobile telephone service on the date of the subject which is the subject of this lawsuit.

State the mobile telephone number(s) of any mobile telephone(s) for which defendant Donald T. Driver had active service on the date of the subject incident.

State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers for which defendant Donald T. Driver had active service on the date of the subject incident.

State the mobile telephone number(s) of any active mobile telephone(s) provided to defendant Donald T. Driver by his employer on the date of the subject incident.

State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers provided to defendant Donald T. Driver by his employer on the date of the subject incident.

Was defendant Donald T. Driver using a mobile telephone for driving directions at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for voice communications at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for text communications at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for any purpose at the time of the subject collision?

When was the last time before the subject collision that defendant Donald T. Driver used a mobile telephone for any purpose?

IDENTIFY the last person that defendant Donald T. Driver spoke with by mobile telephone preceding the subject collision?

As used in these interrogatories, “IDENTIFY” means to provide the name, address, and a telephone number of the person to be identified.

Sample language requesting cell phone records: Below is an example of language that you can use in requesting cell phone records. Be sure to include questions that are both narrowly directed to the time of the collision, as well as questions that are broader, so that the defense won’t say that they don’t have records which are precisely that exact. Bear in mind that the defendant will typically say that they are not in the possession, custody, and control of the requested records. Your primary purpose in requesting these records is to demonstrate to the discovery judge that it will be necessary to compel the defendant to sign a release of records, because the defendant will, by that time, have answered these questions saying that they don’t have possession of the records. In most cases, the only custodian of the records will be the carriers, but you have to set up the defendant by asking these questions first.

Produce all contracts for the delivery of mobile telephony service entered into between defendant Donald T. Driver and any mobile telephony carrier which was in effect at the time of the subject collision.

Produce all contracts for the delivery of mobile telephony service entered into between defendant Donald T. Driver’s employer and any mobile telephony carrier which provided service for defendant Donald T. Driver’s use in effect at the time of the subject collision.

Produce any and all billing statements in the possession, custody or control of the responding defendants for mobile telephony service used by defendant Donald T. Driver for mobile telephony service which was in effect for the billing period which covered the date of service for May 1, 2008 [insert the date of your subject collision].

Produce any and all billing statements covering the period of 10:00 a.m. through 2:00 p.m. on the day of the subject collision for mobile telephony service used by defendant Donald T. Driver.

You are going to have to customize the language above to fit your case. If the collision happened at 12:00 noon, for example, you will want to go back to 10:00 a.m. and forward to 2:00 p.m. to make sure that you get the data for the subject call, in case the parties or the reporting police officer got the time of the collision a bit off.

Conclusion: It may be a long haul to get cell phone records in car accident litigation, start now: You can count on both the defendant and the defense attorney to fight tooth and nail to prevent you from getting your hands on the requested cell phone records. Start your hunt early, or you will find that you are right up against the discovery cut-off without your records, or without adequate time to amend your complaint to allege punitive damages.

Are Cell Phones Causing Cancer?

In 1993, a man filed a lawsuit against the cell phone industry, claiming that his wife died from a brain tumor caused by her repeated use of the cell phone. The tumor was on the same side of the head where she held her cell phone and was shaped like the cell phone antenna. The case got widespread media attention and was featured in CNN’s Larry King show.

Although the claim was dismissed by the court due to lack of sufficient evidence, it was a public relations nightmare for the wireless industry. It also marked the beginning of the global search for a definitive answer to the question: are cell phones safe or not? Does it cause cancer and other degenerative diseases? Brain cancer is up 25% since cell phones became popular. Every year, there are 183,000 more cases in the US alone. Some health experts say there’s a link with cell phone use, but is there proof?

In an effort to diffuse the negative publicity from the high-profile lawsuit, the cell phone industry itself funded a $25 million dollar research program to prove that cell phones are safe. After 6 years of intensive research, however, the results were not what they were looking for. Dr. George Carlo, the chief research scientist of the program, found evidence that cell phones pose some health risks, possibly even cancer.

The first evidence of cancer link that shook the cell phone industry came in 1997. Dr. Michael Repacholi and his colleagues from the Royal Adelaide Hospital in South Australia reported that long-term exposure to the type of radiation that comes from digital cell phones caused an increase in the occurrence of lymphoma in mice. The study received widespread international media attention because it was the first time that cancer has been linked to the cell phone in a well-conducted study.

In order to show a link between cell phone radiation and cancer, let’s look at several studies Dr. Carlo investigated that made him blow the whistle, so to speak. These red-flag findings provide the pieces that fit together to form the cancer picture:

– DNA Damage in Human Blood Studies
– Breakdown in the Blood-Brain Barrier
– Studies of Tumors in People Who Use Cell Phones
– Studies of Cell Phone Radiation Dosage and Response

All tumors and all cancers are the result of genetic damage. Most often that damage includes the formation of micronuclei–fragments of chromosomes that form membranes around themselves and appear under a microscope as additional nuclei in blood cells (which normally have just a single nucleus). The relationship between micronuclei and cancer is so strong that doctors around the world test for their presence to identify patients likely to develop cancer. The presence of micronuclei indicates that the cells can no longer properly repair broken DNA. This deficiency is considered to be an indication of an increased risk of developing cancer.

– In December 1998, Drs. Ray Tice and Graham Hook of Integrated Laboratory Systems in North Carolina have shown that blood cells exposed to cell phone radiation suffer genetic damage in the form of micronuclei. In their studies, DNA and chromosome damage in human white blood cells occurred when exposed to signals from all types of phones–analog, digital, and PCS. Damage was shown even from signals occurring at a SAR level below the government’s “safety” guideline.

– Using different methods, the above finding was confirmed by Dr. Joseph Roti Roti of Washington University in St. Louis in 2000. His research showed that human blood cells exposed to radiation at wireless phone frequencies did indeed develop genetic damage, in the form of micronuclei. This finding received a lot of notice because Dr. Roti Roti is a prominent scientist who does hiw work under funding by Motorola Inc.

This has a very serious implication. If cell phone radiation encourages the formation of micronuclei in blood cells, and micronuclei are said to be “biological markers” for cancer, then based on these studies alone cell phone use could be said to increase the risk of cancer

The blood brain barrier is a special filter in the blood vessels of the brain that keeps dangerous chemicals from reaching sensitive brain tissue and causing DNA breaks and other damage.

– In 1994 and again, in 2002, Dr. Leif Salford from Lund University in Stockholm, Sweden found in his studies that rats exposed to cell phone radiation showed a breakdown in the blood brain barrier, as well as areas of shrunken, damaged neurons.

The micronuclei studies of Tice, Hook and Roti Roti and the blood-brain findings of Salford provide a two-step explanation for how cancer could be caused by cell phone radiation.

Step One: A leakage or breakdown in the blood brain barrier would provide a pathway for cancer-causing chemicals in the bloodstream (from tobacco, pesticides, air pollution, etc.) to leak into the brain and damage sensitive brain tissue that would otherwise be protected. These chemicals could break the DNA in the brain or cause other harm to reach those cells.

Step Two: While a number of studies showed that cell phone radiation by itself does not appear to break DNA, the micronuclei findings suggest that they do impair the DNA repair mechanisms in brain cells. Micronuclei result from a breakdown of the cell’s ability to repair itself. If the brain cells become unable to repair themselves, then carcinogenesis–the creation of tumors–induced by chemical toxins could begin.

DNA carries the genetic material of an organism and its different cells. Any damage that goes unrepaired affects the future generation of cells. The change has procreated and this mutation is seen as a possible cause of cancer.

Epidemiological studies, performed by different investigators using different methods, show some evidence of an increased risk of tumors among people who use cellular phones.

– In 1998, Dr. Ken Rothman of Eidemiology Resources, Inc. in Newton, Mass., did a study showing that users of handheld cell phones have more than twice the risk of dying from brain cancer than do car phone users–whose antennas are mounted on the body of the car, far removed from the users’ heads.

– In 1998, Joshua Muscat, a research scientist from the American Health Foundation, showed in his study a doubling of the risk of developing neuro-epithelial tumors on the outside of the brain among cell phone users, particularly on the side of the skull where cell phone antennas are held during calls.

– Muscat also showed in another study that people who have used cell phones for six years or more have a 50-percent increase in risk of developing acoustic neuroma, a benign tumor of the nerve that controls hearing and extends from the ear to the brain. Acoustic neuromas can cause hearing loss and can be life-threatening if untreated.

This was confirmed in a separate study in Stockholm, Sweden by Anders Ahlbom in 2004 and sponsored by the World Health Organization (WHO), which finds that people who have used cell phones, this time for at least 10 years, may have an increased risk of developing acoustic neuroma.

– In a study also requested by WHO, researchers headed by Dr. Lennart Hardell of the Orebro Medical Center in Sweden examined 1,617 patients aged between 20 and 80 who had been diagnosed with a brain tumour between 1997 and 2000. They were then compared to healthy people. Those who used cell phones for less than 10 years faced a 20% higher risk of developing brain cancer. But for those who used them for more than a decade the risk was 80% higher. The study also found that tumours were 2.5 times more likely to be on the same side of the head as the phone was held. The cancer of the auditory nerve, acoustic neuroma, showed a larger increase–3.5 times greater risk.

All studies mentioned showed that an increase in cell phone radiation exposure also increases the likelihood of the adverse effect occurring.

In Repacholi’s study of mice, the risk of lymphoma increased significantly the longer the mice were exposed to the radio waves.

In the research work done by Tice, Hook, and Roti Roti, the risks of genetic damage as measured by micronuclei formation increased as the amount of radiation increased.

In the three epidemoiological studies–two by Muscat and one by Hardell–the risk of tumors was greater in the areas of the brain near where the cell phone was held.

In Salford’s study, the higher the radiation exposure level the rats were exposed to, the more damage was apparent in the blood vessels in the brain and the neurons.

The test tube studies by Tice and Hook; the mouse study by Repacholoi and Selford; and the epidemiological studies by Rothman, Muscat, and Hardell all agree in that they suggest an increased risk of cancer among cell phone users. They fit together to form the beginnings of a picture that everyone can see. They perhaps don’t form the complete picture yet, but there are enough already in place to see that there is cause fo genuine public health concern about cell phone safety.

According to Dr. Carlo, “The big picture is disturbingly clear. There is a definite risk that the radiation plume that emanates from a cell phone antenna can cause cancer and other health problems. It is a risk that affects hundreds of millions of people around the world. It is a risk that must be seen and understood by all who use cell phones so they can take all the appropriate and available steps to protect themselves–and especially to protect young children whose skulls are still growing and who are the most vulnerable to the risks of radiation.”

– In 2000, a team of Sydney researchers published a scientific hypothesis about how mobile phone radiation causes cancer. The report claims that the radiation generated by cell phones causes ongoing stress to the body cells, causing them to give off ‘heat shock proteins (HSP).’ The human cells sometimes release these proteins in response to injury or infection. Such a chronic activation of the heat shock response affects the normal regulation of cells, which could result in cancer.

– In 2002, cell biologist Fiorenzo Marinelli and his team at the National Research Council in Bologna, Italy, exposed leukemia cells to continuous radio waves similar to that of cell phones. The exposed cells had a higher rate of death than the controls initially, but after further exposure, a curious thing happened: instead of more cells dying, the exposed cells were replicating furiously compared to the controls. Genes that trigger cells to multiply were turned on in a high proportion of the cells. The cancer, although briefly beaten back, had become more aggressive. Marinelli suspects that the radiation may initially damage DNA, and that this interferes with the biochemical signals in a way that ultimately triggers the cells to multiply more rapidly.

Now with all the mounting evidence, the cell phone industry still maintains their position that cell phones are safe and have even begun marketing towards children. The governments have been slow in stepping in to warn people of any danger from using cell phones. Fortunately, health officials and experts in several European countries are taking the first steps, having issued public warnings to parents urging caution about kids and cell phones,

If the previous environmental issues involving tobacco, asbestos, and lead are any indication, it takes years and even decades to accumulate the amount of evidence that would produce a definite ruling. In the case of cigarette smoking, it took two decades of study and 100 years of consumer use to gather enough data to meet research standards to demonstrate the need for the U.S. Surgeon General’s warning label on cigarette packs. Some experts say that in the case of cell phones, it will not take that long as data are coming in at a faster pace. But at the present the authorities can only urge people to exercise caution.

Replication of research is another problem. A study that comes out with a new finding generally does not gain immediate acceptance in the scientific community or the wireless industry unless another research lab has been able to replicate the work and the findings. The industry has cleverly perpetuated their position by creating an illusion of responsible follow up by always calling for more research.

When Dr. Salford published his study in 2003 showing that rat brain neurons were dying from exposure to cellphone radiation, he warned there might be similar effects in humans that over time could lead to degenerative diseases of the brain. His study was written off by the industry as a “novel” finding that needed to be replicated.

But achieving the scientific standard of replication can be complicated. Salford says if studies aren’t absolutely replicated, providing an apples-to-apples comparison, there’s wiggle room to dispute follow-up findings. Research studies require funding, and the wireless industry, after Dr. Carlo’s revelations, have been reluctant to put money into more comprehensive research. As for governments, again many European governments are taking the responsible course by funding research, but the U.S. and Canada are lagging poorly.

In 1999, CNN’s Larry King once again featured a man who brought a multimillion dollar lawsuit against cell phone manufacturers. This time the man, a Maryland neurologist, was himself diagnosed with brain cancer–again located on the side of the head where he held his cell phone. The suit was yet again dismissed, however, and the man died not long afterwards.

According to WHO report, 0.1 billion people have died from tobacco use in the 20th century, and 10 times as many will die in the 21st century. No one is suggesting that cell phones could cause as much casualties, but do we really want to wait and find out?

Unlike tobacco, the cell phone has become as an indispensable part of our lives as television and computer. It has enabled us to make a gigantic leap in the way we communicate with one another and has been credited widely with saving people’s lives in emergency situations. Cell phones are here to stay, and perhaps rightly so.

The question is not how to stop people from using this ubiquitous device but rather how to make it safer. The first step always is to admit there is a problem, hence the industry and the government have to acknowledge the health risks inherent with the present technology. This way we can all find the proper solutions that we may more enjoy the benefits of its use without sacrificing our health and wellbeing.

copyright 2005 Taraka Serrano