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ALERT: “Pinged” Cell Phones and Discovery Issues in PA, NJ, and DE

Within the context of the recent, still formally unpublished, Supreme Court decision in Carpenter v. U.S., 585 U.S. (2018), a narrow confirmation of privacy rights in regards to discovery of cellphone site location information (CSLI) records, Pennsylvania, New Jersey, and Delaware all have limited case law on this issue. Covering all three states is a decision by the Third Circuit Court of Appeals that held Magistrate Judges had the authority to require a warrant for obtaining CSLI records (620 F.3d 304, 319 (3rd Cir. 2010)) but state case law is limited when the matter is civil.

This “pinging” of a cell-phone is used to send a signal from the closest cellphone tower to the device that will then send a signal back to the tower giving a rough estimation of its location. While there is no published case law on the subpoenaing of this information for discovery, there are some lower court opinions on the discovery process with similar information.

PA – Dietrich v. Buy-Rite Liquidators, Inc.

While case law is very limited on this issue, one court in PA held that a Plaintiff’s cell phone bill, on the day of their personal injury, was not discoverable as it would violate their recognized “reasonable expectation of privacy” unless there was additional “factual predicate for the examination.” 12 Pa. Dist. & Cnty. Dec. LEXIS 158, at 10 (Ct. Com. Pl. Northumberland 2012) (quoting Zimmerman v. Weis Mkts., Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Ct. Com. Pl. Northumberland 2011)). Albeit a narrow holding specific to the facts of the case, this opinion still recognized the Plaintiff’s reasonable expectation of privacy more commonly recognized in criminal cases (See Commonwealth v. Beauford, 475 A.2d 783, 791 (Pa. Super. Ct. 1984)) and was affirmed in Cosgrove v. Easton Coach Co., 2016 Pa. Dist. & Cnty. Dec. LEXIS 62, at 5-6* (Ct. Com. Pl. Northampton 2016).

NJ – Predicative from State v. Lunsford

Unlike Pennsylvania, New Jersey does not have distinct case law that specifically handles the discovery issue of cellphone records. However, in a criminal matter, the NJ Supreme Court’s decision in State v. Lunsford, likened telephone toll and bank records to cell-phone location data where they ultimately upheld the constitutional right of privacy in these records. 141 A.3d 270, 273-74 (Del. 2016). Therefore, it appears that NJ would provide Constitutional protections from the discovery of cell phone pinging information.

DE – Predicative from State v. Holden

Unlike Pennsylvania and New Jersey, Delaware does not have case law that handles the discovery issue of cellphone records in either criminal or civil matters. The most relevant case comes from the Superior Court who held that the defendant’s reasonable expectation of privacy was violated when law enforcement secretly placed a GPS on his vehicle for 24-hour surveillance. State v. Holden, 54 A.3d 1123, 1133-1134 (Del. Super. 2010). While the means of tracking one’s location is different, the court focuses on the fact that the GPS device could track the car’s location for the entire day similarly to one’s cellphone. Therefore, it appears that civilly a Delaware court would need the party seeking the pinging records to show some factual predicate to gain this information.

As cellphone technology continues to develop, this limited case law will also develop as these courts will hear more cases that deal with these discovery issues, such as subpoenaing cellphone ping records.    

For more information, please contact Joe Toddy at jmtoddy@zarwin.com 


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