Cell-phone records are a relatively new category of potentially relevant evidence sought during the discovery phase of litigation. In Ortiz v. Amazon, the plaintiff was ordered to produce his cell-phone records, but failed to disclose until weeks after the deadline for the production that the records were in his wife’s name and thus not obtainable. The court held that the records were relevant insofar as the plaintiff alleged that the defendant failed to pay him for all hours worked, and therefore, placed his workday activities, including whether he made or received phonecalls or text messages on his personal cell phone, at issue. The court ordered the plaintiff to provide the defendant with his cell-phone account holder’s name and address and immediately file a declaration under penalty of perjury attesting to those facts and the reasons why he cannot obtain the records himself.
Practitioners should be aware that they may not be able to avoid disclosure of cell-phone records simply by claiming that the records are not under the “custody and control” of their client. Rather, parties are under an obligation to disclose information necessary for the opposing party to obtain the relevant cell-phone records.
Ashley J. Heilprin is an associate with Phelps Dunbar, LLP, in New Orleans, Louisiana.