In a lawsuit between an injured worker and a railroad carrier, both sides can use the tools of a process known as discovery to obtain evidence. One tool of discovery is a request for production of documents. In our modern era, this refers to more than just paper documents. It includes all relevant information stored in any medium, along with its metadata. This means text messages and even the data from wearable devices (e.g., Fitbits) are discoverable.

There are some limitations, but it is important to understand the way this information can be used. A railroad carrier can try to use a worker’s text messages and data from wearable devices to: (1) contradict his/her claim of injury; and, (2) decrease compensation. Note that this is the second post in a two-post series. Please click here for our post on a carrier using information from an injured worker’s social media account(s).

The Use of Text Messages

Text messages are discoverable on mobile devices that are issued by the employer to employees. If you are given a phone by your company, they can view the text messages sent and received from that device. They can also view text messages sent for business purposes if they have directed you to use your personal phone for that purpose. Some courts have concluded that text messages on a private phone are also discoverable if they are relevant and within the possession of the phone’s owner.

Courts will instruct that an employer’s requests for text messages be limited to:

  • a certain time period, or
  • a specific topic that is relevant to an injured worker’s claim.

Courts will balance the need for the information against the right to privacy and nondisclosure of personal information. If need of information outweighs the other interests, a court will allow a carrier to access a worker’s texts. This means it is critical for workers to be careful when communicating about a pending claim via text message. They must also be especially wary of any communication on an employer-provided cell phone. Private, confidential communications ought to remain so and texting may not be the proper way to insure such confidences. Do not say anything that you would not want the other side to see.

The Use of Data from Devices

Wearable devices such as Fitbits and Apple Watches, as well as phone and tablet applications, create and store data. A railroad can certainly try and obtain this data in an injury case. As with text messages, a railroad carrier can access this data if it is relevant to an injury case

If a railroad employer does get this information, it can use it to disprove the extent of an injured worker’s claim. Health and fitness data can be used to show that injuries are not as serious as claimed. Devices such as Fitbits collect information on steps taken, distance traveled, heart rate, active minutes, and location. If an injured railroad worker says that an injury preventing his/her ability to walk or run, Fitbit data, and other forms of digital information, can say otherwise.

What Does it all Mean for an Injured Worker?

 Because a railroad company can obtain the above information, it is important for workers not to exaggerate or fake injuries. Evidence that disproves or weakens an injury claim not only casts doubt on compensation, but it weakens the credibility of the injured claimant. An injured railroad worker should also avoid texting about an injury. They should try to limit communications about a claim to only verbal communications with their:

  • attorney,
  • medical care providers, and
  • immediate family members.

Contact Rossi Vucinovich for Help

If you sustained a railroad injury, it is likely that your employer will try to obtain text messages and digital information from other devices. To preserve your claim and maximize its value, contact a skilled railroad injury lawyer now. Note that Rossi Vucinovich PC has been helping railroad employees and their families recover from railroad injuries for over 50 years. We are dedicated to helping injured railroad workers obtain the benefits they need to treat their injuries, pay their bills, and continue supporting their families. Do yourself a favor and contact us today to get the legal help you deserve.