WHY CELLPHONE RECORDS ARE RESHAPING CIVIL LITIGATION

Until relatively recently, cellphone data was used primarily in criminal investigations. In Michigan civil litigation today, however, such data frequently plays a central role in resolving disputed timelines, testing credibility, and assessing liability in cases involving distracted driving, employment practices, contractual performance, and family law issues.

Modern smartphones continuously generate network and usage data, including communication metadata, location-related information, and cloud-based records. When lawfully obtained and properly interpreted, these records can corroborate or contradict testimony and provide objective context for contested events. Their use, however, is constrained by the SCA, Michigan’s discovery framework, and judicially recognized privacy interests, all of which require careful attention by practitioners.

WHAT’S OUT THERE — AND WHY IT MATTERS

The term “cellphone records” encompasses multiple categories of information, each with distinct evidentiary value and legal limitations:

• Call Detail Records (CDRs): Metadata reflecting calls and SMS messages, including the originating and terminating numbers, date and time, and duration. Message content is excluded. Once appropriate consent is obtained, these records are often the most readily accessible carrier data and are commonly retained for extended periods.
• Cell Site Location Information (CSLI): Records identifying the cellular site and sector that handled a communication. CSLI may indicate a device’s general location within a coverage area but does not provide precise, GPS-level tracking.
• Timing Advance (TA): A network-based measurement estimating the distance between a device and its serving cell site. When available, TA can meaningfully refine location analysis, particularly in rural or semi-rural environments.
• App and Cloud-Based Data: Data generated or stored by application and platform providers, such as Google, Apple, messaging services, and social media platforms. These sources may be highly probative but are often subject to short retention periods and provider-specific legal requirements.

Because retention practices vary widely, counsel should identify relevant data sources early and take prompt steps to preserve potentially discoverable information.

THE LEGAL HURDLES — AND HOW TO CLEAR THEM

The federal Stored Communications Act¹ generally prohibits service providers from disclosing non-public subscriber records in response to civil subpoenas absent lawful consent or a statutory exception. Michigan courts recognize these constraints, which frequently shift the focus of discovery from compelling provider compliance to compelling party cooperation.

Common mechanisms employed in Michigan civil cases include:

• Subscriber Consent: Voluntary execution of carrier-specific consent forms remains the most efficient method for obtaining carrier records.
• Court-Compelled Consent: When the subscriber is a party, courts may order execution of consent forms pursuant to MCR 2.302 and related discovery provisions.
• Third-Party Discovery: Employers or other entities that possess relevant phone-related data may be subject to traditional discovery rules, although SCA limitations may still apply.
• Preservation Orders: Courts increasingly expect parties to take reasonable steps to preserve electronically stored information once litigation is pending or reasonably foreseeable.

KEY MICHIGAN AUTHORITIES ON CSLI & THE SCA

Michigan practitioners should understand how federal and state authority frames privacy interests in electronic location data and how those principles inform civil discovery disputes.

CARPENTER V. UNITED STATES²

In Carpenter, the United States Supreme Court recognized that individuals have a legitimate expectation of privacy in historical CSLI, given its capacity to reveal detailed patterns of movement over time. Although decided in the criminal context, Carpenter has influenced civil discovery by reinforcing the need for courts to scrutinize requests for location data and to ensure that such requests are appropriately limited in scope and duration.

PEOPLE V. SKINNER³

In Skinner, the Michigan Supreme Court acknowledged the heightened privacy interests associated with electronic and digital data. While arising from a criminal prosecution, the decision reflects a broader judicial awareness of the sensitivity of electronically derived information, including location data. In civil litigation, this perspective often manifests in discovery orders that balance relevance against privacy through temporal, geographic, or subject matter limitations.

STORED COMMUNICATIONS ACT⁴

The SCA governs the disclosure of non-content and content records held by electronic service providers. For civil litigators, ths SCA's most significant feature is the absence of a mechanism permitting providers to comply with ordinary subpoenas for subscriber records. As a result, courts typically direct parties to obtain discovery through consent-based processes rather than provider compulsion.

MICHIGAN COURT RULE 2.302

MCR 2.302 authorizes discovery of non-privileged matters relevant to a party’s claims or defenses and proportional to the needs of the case. Applied to cellphone records, the rule frequently serves as the basis for orders compelling party consent, limiting the temporal scope of production, or imposing protective measures to address privacy concerns.

LITIGATION HOLDS AND THE DUTY TO PRESERVE ELECTRONIC DATA

In cases involving cellphone evidence, disputes frequently arise regarding when the duty to preserve electronically stored information attaches and what steps are required to satisfy that obligation.

In Michigan civil litigation, the duty to preserve generally arises when a party knows or reasonably should know that litigation is pending or reasonably foreseeable.⁵ Once triggered, parties are expected to take reasonable and proportionate steps to preserve relevant data within their possession, custody, or control.

Several practical considerations are particularly relevant:

• Triggering Events: Demand letters, pre-suit notices, or the filing of a complaint commonly trigger preservation obligations.
• Scope of Preservation: The duty extends to information reasonably related to the claims or defenses at issue and does not require preservation of all digital data indiscriminately.
• Carrier-Held Records: Although parties may lack direct control over carrier records, they are generally expected to act promptly to seek preservation through consent requests or court intervention before routine deletion occurs.
• Potential Consequences: Failure to preserve relevant electronic data may result in sanctions, including adverse-inference instructions or evidentiary limitations.

Early, narrowly tailored preservation efforts are often more effective — and more defensible — than broad or delayed requests.

FROM DATA TO PERSUASION

Obtaining cellphone records is only the initial step. To be persuasive, technical data must be translated into evidence that is both accurate and comprehensible.

EFFECTIVE PRACTICES INCLUDE:

• Mapping CSLI to illustrate general movement patterns rather than precise location claims.
• Correlating phone activity with GPS data, surveillance footage, or testimonial evidence.
• Presenting expert testimony to explain cellular network operation and to clarify the limitations of the data.

Michigan courts continue to require proper authentication and satisfaction of applicable evidentiary rules, including the business records exception, before admitting such evidence.

BALANCING PRIVACY AND RELEVANCE — A MICHIGAN HYPOTHETICAL

Consider a Michigan motor vehicle negligence action in which distracted driving is alleged. Defense counsel seeks the plaintiff’s carrier records, but a subpoena alone is insufficient under the SCA. The court orders the plaintiff to execute a consent form while limiting production to a narrowly defined time window surrounding the collision. The resulting records show no messaging activity during that period, supporting the plaintiff’s account.

This scenario illustrates how Michigan courts often balance legitimate discovery needs against privacy interests through targeted and proportionate discovery orders.

Practical Takeaways for Michigan Litigators

• Civil subpoenas alone will not overcome SCA restrictions; consent-based strategies are essential.
• Prompt preservation efforts are critical given varying retention periods.
• Narrowly tailored requests are more likely to be approved and enforced.
• Expert interpretation is frequently necessary to present cellular records accurately and persuasively.