Florida Legal Update November 2014


A Properly-Limited Expert Examination of a Cellphone Does Not Violate the Florida Constitution or the Florida Rules of Civil Procedure

Antico v. Sindt Trucking, Inc., et al.

Florida’s First District Court of Appeals allows a defendant’s expert to examine the smart phone of a deceased driver to determine whether they were using the device prior to or during the accident.

Florida’s First DCA recently quashed a writ of certiorari seeking to bar a Defendant’s expert witness from inspecting a decedent’s iPhone and extracting data from it following a deadly automobile accident. See Antico v. Sindt Trucking, Inc., et al, 39 Fla. L. Weekly D2149a.

Following the death of Tabitha Antico in a motor vehicle accident with a truck, her Estate brought a wrongful death action seeking compensation. The Defendant, after it was able to obtain only partial information from Ms. Antico’s cellphone provider, sought access to Ms. Antico’s iPhone to determine whether she had been using it at the time of the accident.

The trial court entered an order permitting the expert inspection subject to various conditions. For example, Plaintiff’s counsel was permitted to attend and could choose whether to videotape the inspection which was limited to retrieving only the data from the nine-hour period surrounding the time of the accident.

Ms. Antico’s estate then sought writ to the First DCA arguing “that the cellphone inspection order violates the decedent’s privacy rights and doesn’t comport with the rules of civil procedure because it permits inspection of “all data” on the decedent’s cell phone.” Id. The First DCA rejected this argument and found that “privacy rights do not completely foreclose the prospect of data stored on electronic devices” as “limited and strictly controlled inspections of information stored on electronic devices may be permitted.” Id.

As a predicate, the Defendant supported their motion to inspect the cell phone with specific evidence in the form of cell phone records and witness testimony indicating that Ms. Antico had used her cellphone immediately before the accident. “It would appear that the only way to discover whether the decedent used her cellphone’s integrated software at the time of the accident, or drafted a text, dialed a number, searched for contact information, reviewed an old message, or used any other of the smartphone’s many features, is by broadly inspecting data associated with all of the cellphone’s applications.”

In this digital age, the First DCA’s ruling should expand the search capabilities regarding cellphones from merely issuing a subpoena for call and text message records, which are often incomplete, to possibly examining the cellphone itself subject to reasonable conditions to safeguard privacy.

Read the full decision.


Not Allowed:  Opposing Summary Judgment With An Affidavit Contradicting Earlier Deposition Testimony.

Baker v. Airguide Manufacturing, LLC

Florida’s Third District Court of Appeals rejects an affidavit opposing summary judgment which contradicts earlier deposition testimony.

Florida’s Third DCA recently affirmed a trial court decision which awarded summary judgment to a defendant business on the basis of workers’ compensation exclusivity. See Baker v. Airguide Manufacturing, LLC, 39 Fla. L. Weekly D2272b (Fla. 3d DCA 2014).

Ms. Baker was an employee of Pacesetter, an employment agency that supplies employees to shorthanded businesses, when she was assigned to Airguide. While working with Airguide, she injured her finger and successfully obtained workers’ compensation benefits from Pacesetter. However, unsatisfied with her workers compensation benefits, she then filed a negligence suit against Airguide.

Airguide argued that Ms. Baker was a borrowed servant and that it was entitled to workers’ compensation exclusivity to the same extent as Ms. Baker’s employer, Pacesetter. At deposition, Ms. Baker basically conceded that she was an employee of Pacesetter at the time of the accident and reported to them. However, “Two days before the summary judgment hearing, and four months after Baker’s deposition, on September 11, 2013, Baker filed an affidavit and an errata sheet to her deposition that materially conflicted with some of the statements she had made during the deposition.” Id.

Despite this, the trial court granted summary judgment on Airguide’s behalf and the 3rd DCA upheld the summary judgment as “it is well-established Florida law that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment.” Id. (internal citations omitted).

 Read the full decision.