Cell Phones – Some Considerations of the Cell Phone of the Future

Cell phone technology has been moving forward at break neck speed, and sometimes we may not notice it, but think back to just a few years ago and you can see all the new feature integration and race in the marketplace – a race to “wow” consumers and get them to choose a specific device. But before we talk about the current trends in cell phones and smart phones, let’s discuss the past evolution of these devices.

Since, I had one of the first mobile “cell” phones – I’d like to tell you a quick story to start out this discussion.

My first cell phones were state-of-the-art at the time, but if you saw them today, you’d laugh. One of them I actually kept; a Mitsubishi Transportable. This phone is about the size of a six pack cooler that you might take to your child’s soccer game, and it was quite heavy, as I recall it is well over 10 pounds. This of course included the battery pack to power up to 3 Watt phone.

Remember that Ion-lithium batteries at the time were just coming off the assembly lines and were quite expensive – they did not exist in this size for anything but NASA and military usage. These original cell phones I had were nickel hydride powered, quite an inferior battery technology for modern cell phones.

The Mitsubishi Cell Phone has a strap on it so you can carry it like a purse, and I often felt really stupid carrying it, until of course it rang, and I unzipped the top, pulled out the handset on the phone and began talking. I can recall that everyone stared as if I was a secret CIA agent, was working for MI6, and my name wasn’t Lance, it was really James Bond. You see, at that time not very many people had the cell phones and they were very expensive.

Another one of my first phones was a Audiovox 1000 model, which was quite large and it was mounted in my car, a car phone – cell phone. The box that ran the Cell Phone was mounted under the seat, and there was a cradle that held the headset. The headset had a cord on it just like a phone at home, before the cordless phones that is. Under the seat the box was about 3 1/2 inches high and the size of a laptop with a 17.1 inch screen.

This Cell Phone or car cell phone was wired directly to the battery with a couple of fuses. When I turned on the vehicle, the Cell Phone would automatically turn on. If I turned off the vehicle, I had to leave it on accessory with the key in the right position, unless I left the phone on which by-passed the ignition. When the phone rang and actually honked the horn, which got me into trouble a couple of times when the horn went off while I was driving behind a police car stopped at an intersection. I have a lot of stories to tell you about all those early days with the first cell phones, and you may e-mail me if you are ever interested in such experiences.

Folks today take all this for granted, as they don’t realize how cumbersome the original cell phones were, or how stupid they were compared to modern day smart cell phones. Today they give you a free cell phone when you sign up for service – back then you had to pay $1000 for a car cell phone, and as much as a couple hundred dollars to have it installed. It was quite a procedure, if you have a stereo system, and an XM radio put in your car at the same time, that is about how much work it took to do this. Therefore, at today’s labor rates you could easily pay three or $400. That’s definitely something to think about.

If I was talking to someone on the phone while the engine was running, if I turned off the car and moved the key to the accessory position I would dump the phone call, as I cut it out during that transition. However, having a cell phone in my car helped me increase my business. At the time I was only 17 years old – I had an aircraft brokerage firm and aircraft finder’s service and I would work off of fees whenever an aircraft that I represented sold. I also had a small aircraft cleaning service and was able to contact customers from my vehicle on the flight line, and my crews could call me when they were done with the job as they would use the local payphone to call me.

Thus, this mobile technology allowed me to make more money, and remain more efficient than the competition. Remember at the time this was leading edge technology, it was state-of-the-art, and I had it – the competition did not. No longer was I stuck in an office, I could run my business from anywhere and it allowed me much freedom. Often people today do not realize what it was like before mobile cell phones. Anyone who is in business now over the age of 50 certainly realizes, because they remember a time when there were no cell phones.

This was a period in our nation’s history where there were pay phones in every shopping center, every gas station, outside of every fast food restaurant, and people used them all the time. Business People who didn’t smoke filled their ashtrays with coins so they can stop and use the pay phone. Thus, allowing them to call clients, customers, vendors, and maintain their operations in the office. When cell phones first came into play they displaced the old Motorola technology of push to talk phones, which worked off a mountaintop repeaters, these phones were very big in the military, construction industry, and all the executives with large corporations had them.

Since this was radio technology, they worked farther than the first cell phones which had to be within 10 to 15 miles of a cell tower. Today, the cell phones are less wattage than they were back then, so the average cell tower is 6 miles or less apart. Back then the cell phones worked off three Watts, and now with 3G technology the wattage is under 1 W. This is probably good for the human biosystem, as it is putting less microwave frequency radiation into your brain, there will be fewer brain tumors, brain cancer, and other issues. There have been many studies including several with the Swiss researchers which seemed to indicate that the 3 W phones were quite unacceptable for human health, and they would slowly cook your brain as one researcher said.

Luckily, for the cell phone industry they were able to bury most of these problems and objections, as well as the studies that the Swiss did. Although, there were studies here in the United States, you would be hard-pressed to find those research studies and data on brain tumors, brain cancer, and their relation to the cell phones that people used. In fact, if you go to Google Scholar today you will be hard-pressed to find anything that would suggest that the cell phones could cause such horrible conditions. This of course is all still up for debate, but we try not to talk about it.

Perhaps, by going to 3G wireless, and lower wattage the mobile cell phone industry dodged a bullet of huge class-action lawsuits, and we may never know the damage we had caused. Nevertheless, as we talk about Six Sigma efficiency in corporations, or using modern management techniques in small businesses, no one can deny that increasing communication speed and reliability is by far a factor in the increase productivity in the 80s and 90s due to cell phones.

At the time I was literally running 1000 to 1200 minutes per month and although that service was much cheaper than the other choices such as the Iridium Satellite Phones, non-cell phone mobile units, as they did not use cell towers, rather satellites – you can imagine the costs of the original cells. They did not have an unlimited plan and once over your minutes, you paid the premium for each minute on that cell phone, my bill was usually $500 to 800 or more.

The other mobile phones at the time were not cell tower-based phones, they were push-to-talk and came in a brief case – it was considered quite James Bond at the time. And this was back in the 1970s, and I remember this, because I started my business when I was 12 years old washing airplanes at the local airport. Many of the businessmen who owned corporate jets had these types of phones. They were basically for the rich and famous, and business person. They didn’t work everywhere and you had to have pretty much line of sight to the nearest tall mountain, and that mountain had to have a repeater on top of it, which was hardwired into telephone lines, and the rest of the system worked with ground lines.

All this is very interesting, and we must consider that many folks today have never been alive when there were no cell phones. They have no clue how hard it was to run a business back in the days when there really was no mobile communication. The same repeater systems on top of the mountains that Motorola owned or which used Motorola hardware, also controlled the pagers. These pager systems were quite popular with people on call, such as doctors, and service personnel. Two-way radios, which work basically the same as the two-way push to talk briefcase phones, were used through a dispatcher for companies very often.

Later, just as cell phones came into play, someone came up with the idea of 1.5 way and two-way pagers. Instead of a one-way pager, someone who had what they call an “alpha mate” device could page someone and ask them a question (using a text message) on that page and the recipient could press a button for yes or no, Y. or N. and that information would be relayed to the dispatcher. People actually got pretty good at communicating this way. And you could send text type messages for the user of the pager to read. In reality these were the first text type messages, so the concept of having a mobile device and using text messaging is not all that new.

Two-way text messaging via cell phones is merely a re-introduction of that similar technology. Once people had cell phones they didn’t need to use the text pagers anymore, and that technology was leapfrogged as the price of the cell phone services was lower, as competition increased between companies like Sprint and AT&T. There were many other regional smaller players, but they eventually got bought up by the big boys.

The cell phone industry grew so fast in the late 80s and early 90s, that eventually there was coverage everywhere. Then something really weird happened, the promise of 3G wireless came into play, and folks started switching to that new system. I can tell you this – my first cell phones were much more powerful and worked much better than the cell phones of today.

Occasionally, I had a call dropped and there were not as many service areas, yes there were more dead zones, but the signal was much more powerful because it was 3 W, and since it ran off my car battery or a large battery pack in a small carry case, it had ample power to maintain that strong signal.

Today, when I use my AT&T cell phone, I am often cursing because the service is so bad, I wonder why I am even paying for it. In fact, the loss of productivity from dead zones, and the cell phone calls dropping, I feel as if AT&T should be paying me. Apparently, I am not alone many people feel the same way. Nevertheless, the 4G wireless is on the way and everyone will be switching to that so that they will have Internet access allowing them to do e-mails, twitter, video, and real-time text messaging without the use of ground lines

A good many folks do not know of a time when there was no email or internet. And most people who are in business today, who are under 50 years old do not remember a time when we didn’t have fax machines, the reality is that fax machines came into play about the time of the first cell phones. Mind you, there was still no Internet, no e-mail, and although ARPANET was being used by the military, and by think tanks, research centers, and top universities, it wasn’t really available to the public in the way we have it now.

Fast forward to today and now no one goes anywhere without a cell phone. Social researchers have noted fewer people wearing wrist watches. They don’t need a wristwatch because that is a standard feature on all cell phones now. Of course, this doesn’t help companies like Rolex who are catering to the young up-and-coming BMW crowd, if you look around you will see that most young executives don’t even wear a watch and most of our younger generation doesn’t wear a watch either.

It seems that the wrist-watch replaced the pocket watch, and the cell phones seem to be replacing just about everything. These days people use their cell phone or smart phones to do their e-mails, and these same phones act like a PDA, no one carries day planners anymore, although a few people do, myself included perhaps out of habit from using a day planner from the time I was 12 years old in my business until I was in my mid-40s. Perhaps, I am giving away my age, but sometimes old habits die hard.

Today with many laptop notebooks, PDAs, and smart phones, it seems none of that other stuff is needed. Including your human memory say many psychologists, who argue that this technology is causing the human brain to rewire itself differently because there are different needs to get along in the world. After all, all your best friends are on the speed dial and you don’t have to remember phone numbers anymore. And all your contacts and information is on your smart phone, in your e-mail program, or on your laptop.

Cyber security analysts worry that if the system crashes or God forbid an electro-magnetic pulse, neutron bomb, or nuclear device is set off high in the atmosphere it could destroy all the electronic equipment, including all the cell towers, your laptop, your television, your refrigerator, and your smart phone. Where will you be then, and can you rely on your memory and the brain you are born with to carry on your daily endeavors – scary thinking, but perhaps we need to address this as we consider the evolution of cell phones.

Today, our cell phones have changed the entire dynamics of our society. There are unspoken etiquette issues of cell phone use in public. There are rules when we can use our cell phones and when we can’t. Issues such as driving with a cell phone and the number of auto deaths which occur while people are driving and talking on the phone at the same time. There have been major disasters caused by texting while driving a bus or conducting a train.

The reality is that as our technology has evolved, it is evolving much faster than the human brain can to take it all in. Due to the multitasking required in our society to get along and the high pace and productivity that jobs require, many brains cannot cope or adapt fast enough. And this seems to be a problem, if some people are not able to make the switch, but they attempt to, sometimes while driving with disastrous results.

Our smart phones are becoming super cell phones that have more and more features, such as the ability to store music like the iPod, and vast amounts of data like our electronic PDAs. These devices are getting more high-tech each and every year and they are feature rich. Many have five to ten gigabytes of information storage now. One recent study in the cell phone industry noted that 90% of the people who own cell phones have never used all the features, and do not know how to program them, or even that they exist on their cell phone. Most people don’t even care, they use the features they want and none of the others.

This is a common problem with new technologies, and it is something that happened with that Beta and VHS recorders. What’s that old joke, there are tons of features on your video recorder at home, but no one knows how to use them, and before we all learned that we need to learn to use these features, the VHS video recorder is out in the new DVDs are here. Now cable companies offer boxes which can record multiple shows so you can watch later or pause a live TV program while you go to the bathroom, or go to the kitchen to get something to eat. Some allow you to use your cell phone to do remote programming too.

These are all things common challenges which are encountered and similar problems with any new personal tech devices which become mass consumer products. Cell phones and our current smart phones are no exception. It’s hard to say the future what types of new features in our cell phones will have. The sky is the limit, and the imagination and demand for more features and greater technology is readily apparent. The early adopters of such cell phone and smart phone technologies are willing to spend big bucks to have all-in-one devices. Therefore, these trends will continue.

Just to give you an example of some of the crazy ideas people come up with for future smart phones let me tell you a little quick story.

Our on-line Think Tank came up with a plan to produce a PhD or Personal Health Device, which tracks your diet – on your cell phone. How it worked was quite simple, when you are at the grocery store, you would scan all the items that you bought, and they would go into storage inside your smart phone. Each time you ate one of those items you would simply select what you ate, and punch in the number of servings and you would calculate and keep track of your calories, fat content, and recommended daily allowances in the major five food groups.

The smart phone would have a scanner system on it, later subsequent versions of this smart phone and personal health device would be able to scan products via RFID tags. Your phone could tabulate and even recommend what you should eat, how many more miles you should jog, and what you would need to maintain your diet to meet your personal health goals, and weight loss program. Sounds crazy doesn’t it, yes, it does, but the venture capitalists like the idea. So too, do companies that produce high tech smart phones today, as everyone is looking to get a jump on the competition.

GPS systems by way of smart phones or cellular high-tech phones is quite possible (now available), and you don’t even need satellites to do it. If you are within the realm of several cell towers your location can be triangulated quite quickly, which pinpoints your exact location within 10 feet. Ah ha, you see the problem in this too; What about privacy you ask? That’s a good point and that is another issue that people are quite concerned about with all this new high-tech personal smart phone innovations.

Google Phone and social networking connections appear to be on horizon. That is to say, linking your smart phone with all of your social networking friends, but apparently Google got into a little bit of a problem and noted that many people are not ready for that just yet. In fact, many people who are friends on social networks and make connections, have no intention of ever meeting these people in real life, and therefore they aren’t really friends. And since you don’t really know anything about those connections or friends on your social networking site, the last thing you want them to do is know exactly where you are within 10 feet.

That should appear to be obvious, and in the future it may not be such a big deal, but people are still a little paranoid and they like to have their privacy. Meanwhile, we read more and more articles about social networking gone bad. That is to say people using social networks to stalk other people, and this also concerns parents who have teenagers, who use social networks on a daily basis, and some that use them on an hourly basis, and a good many who seem to be texting every few minutes.

One recent study of cell phone users was able to have a 93% predictability of where a person might be based on the patterns determined by their cell phone, and when it was connected to any given local cell tower. The study found that most people stay within 6 miles of their homes. These patterns of predictability are a reality in our society and how we operate as individuals – nevertheless this brings up all types of issues that have attracted the attention of the Electronic Freedom Foundation, and it also touches on the issue of privacy and paranoia, it catches people off guard.

Then there is the new trend with smart mobs using their smart phones, and having fun with and meeting up in various places all at the same time. Although these schemes are used for fun, entertainment, and socializing, these same types of smart mobs have the power to destabilize a society or civilization. Consider if you will the use of technology in Tiananmen Square – should governments be worried about your smart phone technology, or the future of 4G wireless cell phones? They probably should be concerned with it, especially if it is used by a foreign government to provide mass protests against what would be a normal stabile government.

In other words it has uses in warfare, the CIA, in bringing down corrupt regimes which are enemies to United States. But rest assured – the same thing could happen in the United States where perhaps a communist rogue nation state decided to have protests in the United States in our major cities on Mayday. It could easily happen especially with our own technology being used against us, due to all the interconnectivity that it offers.

  1. Does this mean that our government has to find a way to turn off all the cell phones in case of something like this happening?
  2. Do they need a device to turn off certain cell phones from the system, while leaving first responders cell phones activated for communication?
  3. And what about hackers, which might be able to send out tens of thousands of bogus text messages, or call masses of people into a trap, or stage a riot?

These are all questions we need to answer and we need to understand that the same technology we create to improve our productivity, our society, and help us in our daily lives with our families and friends can also be used against us.

And what happens when our smart phones become smarter than us? Some believe, as I do, that they already have. Most of the smart phones today have artificial intelligence systems within them, for instance a text messaging program which guesstimates which keys you are going to press next or what you are trying to say and it offers you suggest is so you can fill in the blank. Making your texting very quick. This is very similar technology that Google uses when doing a search and offer suggestions as you are typing to save you time. This is just one form of artificial intelligence in our smart phones and cell phones today.

There are many cell phones that allow you to use speech recognition to dial phone numbers, search your databases, or navigate the screens on your cell phone. The newest smart phones will be able to tell you when you are in proximity to a Starbucks and then give you GPS directions to find that location. This has big implications for retailers, advertisers, and consumers alike. They will begin to know your patterns and habits. All these technologies are available now and we will see them in the near future. Your cell phone will even become a payment device, hooked to your credit card information. All this technology exists today.

But what about the technologies which are just over the horizon?

We’ve recently seen at Comdex and CES shows the first generations of projection cell phones, that is to say video conference enabled cell phones which allow you to project to the other party onto the nearest wall or onto a table so you can watch. This will obviously be followed by the Holographic cell phones, which were similar to those that we saw in the Star Wars trilogy.

All these things will be available in the next five years, and you will most likely have them if you buy one of the high-tech cell phones in the near future. At first these technologies will cost a lot extra, but those prices will come down as the number of units built goes up and as more Chinese also purchase their first cell phone, adding another billion people who own such devices, therefore bringing the cost down for everyone – significantly!

By the year 2025 your cell phone will be a brain chip inside of your head, and you can think that you’d like to contact someone and it will dial the number and contact them. By 2050 you will be able to do thought transfer via the small devices, brain implant – perhaps smaller than a dime. And people born after that will never know what time were “thought transfer” did not exist, just like right now there are many people who have never known a time when mobile phones didn’t exist. And since Moore’s law also seems to apply to the cell phone and smart phone industries we can expect a size reduction as well as a power reduction to run this technology.

In other words, your biosystem will be able to power up your brain cell phone chip, just as it does your current human brain which works on about a maximum of 20 W. of energy, and you will be able to have an eyelid screen, so you can close one eye, and surf the Internet. It’s hard to say what the Comdex and CES Show in Las Vegas in the year 2025 will look like, it is probably impossible to pinpoint what these shows will look like in the year 2050. In fact, there may not be shows at all, you may be able to experience these trade shows in your holographic living room, video gaming center.

Walking the virtual halls of the trade show using your avatar and talking to other avatars explaining all the new technologies that are available for you might be the new reality albeit an Augmented or fully Virtual Reality. That appears to be where we are going, although it’s hard to imagine considering where we are today. Nevertheless, I can assure you people in the 1950s could not really have imagined the way in which our smart cell phones have evolved in the present period.

Currently, there seems to be a very big push in the larger cities like Atlanta and Dallas, Los Angeles and Seattle, Boston and New York, Miami and Houston towards the 4G wireless, obviously this will continue. That is the full broadband Internet surfing on your smart phone, the ability to watch TV while driving in a car on your cell phone. And next comes the ability to project that TV onto any screen or flat surface that is nearby or available. The technology is getting more robust, it’s getting smaller, it’s getting smarter, and you have to decide how far you want to go with it.

Perhaps, I should write a quick eBook on this topic and explain chapter by chapter, the evolution of this ominous communication technology, and the future of smart phone personal tech devices. Let me know if you know any interested potential co-authors.

At the current pace we are moving, and at the speed in which we are interfacing with the Internet, social networks, e-mail, and television, it’s hard to say exactly what you will be carrying around in the future in your purse or pocket, but I daresay it will be something that is truly incredible, and in the next 10 years it will be hardly imaginable from this point in time to know exactly what it will be, or what it might be able to do. I hope you will please consider all this. And contact me if you’d like to discuss this further at the Online Think Tank.

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.