November 23, 2017

Archives for September 21, 2016

Event Data Recorders, Drones, and Evidence: What You Need to Know

DroneThe Denver District Attorney’s monthly newsletter for September 2016 warned consumers about connecting their cell phones to the computers in rental cars. The newsletter warned, “Once your phone is connected to the car, it can access all your phone’s information such as GPS searches, home address, phone calls, contacts, etc. The information is stored indefinitely, waiting for the next person to connect to the car, and to your private information. The risk is obvious.”

The risk to rental car drivers concerns the car’s Event Data Recorder, or EDR. However, EDRs in cars can be useful for more than accessing another driver’s playlist. EDRs can record when and how often drivers use certain features in cars, such as the hand brake or the turn signal. The raw data from a vehicle’s EDR can be enormously useful in litigation. C.R.S. § 12-6-402 governs the use of EDR evidence in litigation, providing

EDR data is the personal information of the vehicle’s owner and the data shall not be retrieved by a person who is not the owner unless:

  1. The owner or the owner’s agent has consented to the retrieval in the last 30 days;
  2. The data is retrieved by a technician performing service or repair;
  3. The data is subject to discovery pursuant to the rules of civil procedure in an auto accident case;
  4. A court or administrative agency with jurisdiction orders the data be retrieved;
  5. The EDR is installed after the manufacturer or dealer sells the vehicle; or
  6. A peace officer retrieves the data pursuant to a court order as part of an investigation.

Another relatively new source of litigation evidence comes from drones. Drones, or unmanned aerial systems, collect video evidence from their on-board cameras. The use of drones is fraught with controversy, as cases collect regarding people shooting drones in the airspace above their property, people expressing surveillance concerns regarding drones, and more. The Federal Aviation Administration has promulgated rules regarding the use of drones, but more will be developed as these unmanned aircraft gain popularity.

Savvy lawyers need to know about the complexities of digital evidence preservation and the ethical considerations of working with technology and the experts who gather the data. Join Fay Engineering and Chad Lieberman, Esq. for an exciting presentation about the cutting edge technology of drones, dash cams and black boxes. Digital information is being gathered by our vehicles, our phones, and in nearly every aspect of our lives. The technology of aerial photography continues to rapidly change. The presentation covers the latest advances in evidence collection by drones and commercial services. Register online here, or by clicking the links below.

 

CLELogo

CLE Program: New Technology for Evidence Preservation: Drones, Dashcams, Black Boxes and More

This CLE presentation will occur on September 26, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1:30 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 9/20/2016

On Tuesday, September 20, 2016, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

In re Grant: Claybaugh v. Grant

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.