Cellphone records can be significant evidence in litigation arising from a commercial truck crash. Call logs, text message records, and data usage information may show whether a driver was using a phone in the moments before an impact. Because this kind of data exists on devices, with employers, and with wireless carriers, and because some of it is overwritten or deleted over time, Georgia law and litigation practice use a combination of procedures to preserve it. This guide explains those procedures in general terms.
Why preservation is a concern
Two features of cellphone evidence make preservation a recurring issue. First, the data is held by multiple parties: the physical device retains some information, an employer may control company-issued phones or telematics systems, and the wireless carrier maintains billing and usage records on its own systems. Second, the data is not permanent. Carriers typically retain detailed records for a limited period, and content on a device can be deleted, overwritten, or lost if the device is reset, replaced, or simply used in the ordinary course. These realities mean that evidence can disappear before a case develops if no steps are taken.
The duty to preserve under Georgia law
Georgia recognizes a legal duty to preserve evidence that is relevant to contemplated or pending litigation. The duty arises when a party has actual or constructive notice that litigation is likely. Once that duty attaches, a party is expected to take reasonable steps to preserve relevant materials within its control.
The failure to preserve relevant evidence is called spoliation. Georgia courts have authority to address spoliation through several remedies, which can include an adverse inference, meaning an instruction permitting the jury to presume that the missing evidence would have been unfavorable to the party that failed to preserve it, the exclusion of testimony, or in serious cases other sanctions. The availability and severity of a remedy depend on factors such as whether the party was on notice, the degree of culpability, and the prejudice caused.
Preservation or spoliation letters
A common first procedure is a written preservation letter, sometimes called a spoliation letter or litigation hold notice. This is a formal notice sent to a trucking company, its insurer, or other parties demanding that all relevant evidence be preserved. In the context of a truck crash, such a letter may identify the driver’s cellphone, company-issued devices, call and text logs, and related electronic data, and request that they not be deleted, altered, or destroyed. The purpose of the letter is to place the recipient on clear notice, which strengthens the argument that a duty to preserve existed if evidence later goes missing.
Litigation holds within an organization
When an organization receives notice of likely litigation, the preservation duty often translates into an internal litigation hold. This means suspending routine deletion practices and instructing relevant personnel to retain materials. For a motor carrier, this can extend to dispatch communications, telematics data, and any company control over a driver’s device. A litigation hold is an internal process, but it is closely tied to the legal duty, because a court evaluating spoliation will consider whether reasonable steps were taken once the duty arose.
Carrier records and the Stored Communications Act
Records held by a wireless carrier are subject to federal law. The Stored Communications Act restricts when a carrier may disclose customer records and the contents of communications. As a general matter, a carrier will not release records on the basis of a private letter alone. Detailed records and especially content typically become available only through formal legal process, such as a subpoena issued in a filed lawsuit, and disclosure may also depend on subscriber consent.
Because of these limitations, a preservation request directed to a carrier serves a narrower function than a subpoena. It asks the carrier to retain records so they are not lost before formal process can be used to obtain them. Carriers may honor a request to preserve specified records for a limited period, and such requests can be renewed. Actually obtaining the records, as opposed to preserving them, generally requires a subpoena or other court process and must comply with the federal statute.
Discovery procedures after a lawsuit is filed
Once a lawsuit is pending, the Georgia Civil Practice Act provides the tools to obtain preserved records. A party may serve requests for production on an opposing party seeking call logs, text records, and device data within that party’s possession, custody, or control. Records held by a nonparty, including a wireless carrier or a separate employer, may be sought through a subpoena. These procedures are subject to the usual rules governing relevance, scope, and any applicable privacy objections, and disputes are resolved by the court.
How the pieces fit together
In practice, preservation of truck driver cellphone records in Georgia involves a sequence: the duty to preserve attaches when litigation becomes likely; preservation or spoliation letters give formal notice to the relevant parties; internal litigation holds suspend routine deletion; preservation requests to carriers keep records from being purged before formal process is available; and, after suit is filed, requests for production and subpoenas obtain the records, subject to federal restrictions and court supervision. If relevant records are lost despite these procedures, the spoliation doctrine gives Georgia courts a range of remedies to address the loss.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.