Kizer et al v. Starr Indemnity and Liability Co et al, No. 5:2018cv00846 - Document 48 (W.D. Okla. 2019)

Court Description: ORDER granting in part and denying in part 25 Amended Objection and Motion to Quash the Subpoena. The court modifies the time period of the subpoenato the twenty-four (24) hour period immediately before and two hours immediately after the accident. Signed by Honorable Timothy D. DeGiusti on 5/6/19. (kmt)

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that NATS does not have standing to challenge the subpoena. However, the Motion was raised by both NATS and Palma. Because Palma has a personal interest in the privacy of his cell phone records, he has standing to challenge the subpoena issued by Plaintiffs. See Clark, 2015 WL 4694045, at *2 (recognizing a plaintiff has a privacy interest in his cell phone records and, therefore, has standing to challenge a subpoena for those records). 5 II. Relevance and Scope of the Request Palma asserts that he has a privacy interest in his cell phone records and Plaintiffs have failed to demonstrate a legitimate need for the records that outweighs his privacy interests. Motion at 6. Based on his privacy interest, Palma states the subpoena should be quashed. Motion at 6. Generally, “a reasonable person would not expect the numbers they dial on their personal cell phone to become public knowledge.” Clay v. Lambert, 17-CV00085-PAB-MEH, 2017 WL 4755152, at *4 (D. Colo. Oct. 20, 2017). Nevertheless, after review of the briefing submitted on this matter, the Court finds that pursuant to the scope of discovery and relevance standards set forth in Rule 26(b)(1), Palma’s cell phone records contain relevant, discoverable information. Central to Plaintiffs’ claims is the assertion that Palma was negligent in that he failed to adequately inspect and maintain the tractor-trailer prior to the accident and was fatigued and distracted during his operation of the vehicle at the time of the accident. Response at 1, 2, 5, 6-7, 10, 11. The Court finds that Palma’s cell phone records, excluding the substance of any particular communications, are relevant to determining whether Palma was distracted and/or fatigued at the time of the accident. This clear relevance outweighs any privacy interest Palma might have, subject to the limitations discussed herein. See Clark, 2015 WL 4694045, at *2. The Court finds, however, that the time frame for which the records are requested is too broad. See Coleman v. Reed, CIV-15-1014-M, 2016 WL 4523915, at *2 (W.D. Okla. Aug. 22, 2016) (finding that similar cell phone records were relevant as to whether the defendant was using his phone, and in what ways, at the time of the accident but that the 6 requested three-day period was overbroad). The Court modifies the subpoena to require production of cell phone records for the twenty-four (24) hours prior to the accident and two hours after the accident. Plaintiffs agree that the subpoena does not request “the content of Palma’s communications.” Response at 5, 13. Therefore, the Court finds that records to be produced are limited to records containing incoming and outgoing call and text logs and logs of application use. T-Mobile shall not produce any information regarding the content or substance of any communications. CONCLUSION As stated above, the Court GRANTS in part and DENIES in part Defendants’ Amended Objection and Motion to Quash the Subpoena to T-Mobile Subpoena Compliance Department [Doc. No. 25] and MODIFIES the time period of the subpoena to the twenty-four (24) hour period immediately before and two hours immediately after the accident. IT IS SO ORDERED this 6th day of May 2019. 7

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