Fortunately, however, the law does. And if the other driver was clearly at fault because of distracted driving, this definitely weighs in your favor if it should come time to seek financial compensation for injuries and damage. For people involved in distracted driving incidents, this is one of the great things about the use of smartphones in these accidents; being computers, smartphones track and store all activity. So, if a person was shooting video of themselves singing, taking a photograph, or sending a text message, all of that will be stored on the phone, complete with a timestamp of when the action took place. It’s a “smoking gun” that squarely implicates them.
Or will it?
In some cases, a person involved in a distracted driving accident may have the clarity to understand that not only are they at fault in this accident, but the phone will implicate their negligence if it should be used as evidence in an auto accident case. More forward thinking users may even go so far as to access their phones in the moments after an accident to delete the video they were shooting, or erase the picture they were taking, or even contact the friend they were messaging and instruct them to delete all the messages that were just exchanged in a desperate bid to get rid of evidence that would clearly place the blame on their shoulders.
Even with this kind of disappointing attempt to evade responsibility, all is not lost.
Even when data has been deleted, or people have been instructed to erase communications, it is still possible for a kind of “digital forensics investigation” to capture and verify trace elements of the data. Audio files, image files and text files have all been recovered to various degrees across both Android and iPhones, and at the very least, these trace remains of the deleted files—even if they weren’t fully recoverable—have left activity logs showing the times of use or deletion. In some cases, these files have been fully recovered, which is even more incriminating.
In the case of text messaging, it is even less secure, as even if a person deletes the messages they sent, and instructs the recipient on the other end to delete the messages as well in an attempt to hide negligence, the actual communication software or phone company providing a text messaging service can still provide records showing that the exchange took place. They will know the time and people involved, even if the actual content has been erased.
All of which is to say that if distracted driving was responsible for an accident, and a phone was involved, it is crucial that the phone be preserved. Even if evidence is deleted, it may still be recovered from the phone. An experienced auto accident lawyer can greatly help in resolving this process.