Tuesday, December 18, 2018
December 18, 2018
Using Cellular Records Analysis in Insurance Claims
Since getting trained and certified several years ago in the proper acquisition, interpretation, analysis and mapping of cellular call detail records, we’ve worked numerous types of cases. We’ve also tried out several tools for this type of analysis and have settled on one that is widely used primarily by law enforcement. While the use of these records to help prove or disprove a criminal defendant’s location is very well known in criminal investigation, our goal has been to try and inform civil litigators about the value and power of these records. Civil case applications range from custody and support disputes in domestic litigation to personal injury cases where distracted driving may have been a factor in a motor vehicle accident. But of all of the calls we get and cases we work involving analysis and mapping of these records, insurance loss claims prove to be the most compelling.
From arson fires at businesses or homes, to claims made for motor vehicle theft of high-dollar items, the use of cellular records to help prove or disprove the claimant’s statements have proven and will continue to prove extremely valuable. This article will use real world examples to help illustrate how these records have helped out civil investigation and litigation claims and investigations we’ve worked over the past several years.
Thumbnail Case Studies
Case Study #1:
A restaurant in the Northeast burns down shortly before Christmas time. The owner files a claim with the insurance company to receive a payout of over $1 million on the insurance policy, claiming the fire was an accident. Through the investigative process of the claim, the owner is deposed, making statements under oath that they traveled from the mostly rural area where the restaurant was located to a major metropolitan area on the day of the fire, using their phone multiple times. The insurance company highly suspects that the claimant burned down their own restaurant. The law firm representing the insurance company issues a subpoena to the claimant’s cellular provider for records surrounding the date of the incident and retains Pro Digital to conduct analysis, mapping and reporting of the cellular records. The analysis of the records as compared to the sworn testimony of the claimant disprove their story, thus not only invalidating the claim, but potentially subjecting the claimant to criminal charges.
Case Study #2:
An owner of a $100,000 sports car in a Southern state wakes up one morning after spending the night at a hotel in an adjacent state to find their very expensive car allegedly stolen and files a police report and subsequent insurance claim to that effect. While the owner lives about 50 miles away from the hotel and incident site, under deposition they claimed to have traveled much farther to the west along the Gulf coast prior to stopping at the hotel for the night due to fatigue, all the while using their cell phone. The law firm representing the insurance company subpoenas the owner/claimant’s cellular records to help prove or disprove their statements made under oath and retains Pro Digital to conduct the analysis. As you could probably imagine, the statements about travel to the west leading up to the alleged car theft are refuted by the cellular records, when compared to the deposition testimony. The claimant is now potentially facing not only a denied claim for their expensive car, but criminal charges for filing a false police report. Also, where’s the car? Further criminal investigation by law enforcement will likely ensue as well.
These are just two examples of how these records are used to help prove or disprove not only the statements made under oath, but the overall claim itself. Fraudulent claims are big business and they affect every insurance carrier, regardless if you ever file a claim.
Obtaining Cellular Records
So how does this all work? As we presented to a group of civil litigators in Virginia earlier this year, you can set yourself up for success by taking some steps on the front-end of claims, so as the ball gets moving along in the investigative process, the cellular records can be used to help your case.
The first step is to ascertain the phone number of the claimant issue a preservation letter as soon as possible to the cellular provider. This can be done pre-litigation. If you don’t know who the cellular provider is, there are online resources who can tell you, or you may contact Pro Digital to get this information. Why do we issue a preservation letter? As detailed in our article about Cellular Provider Retention Periods, each of the 5 major cellular carriers only retains these records for a finite period of time. Why is that? It’s helpful to realize that these records were never meant for use in any sort of civil or criminal proceeding. They are used by the cellular providers to help optimize the user experience on the network over time.
All of that being said, the next step is probably the most vital and where we see more mistakes than any other area…
After litigation has been put into place, you may now petition the court for a subpoena to obtain the cellular call detail records with location data of the claimant or target of the investigation. If accomplices are suspected, you may also want to subpoena their records as well. The proper wording of these requests is absolutely crucial. Cellular carriers will only give you exactly what you request and no more. We strongly advocate getting all available data, whether it’s relevant to your case or not. For instance, some cases only deal with link analysis – the graphing and tracking of how many times the target(s) of an investigation contacted known associates of interest or accomplices. In cases like this, you may think location data isn’t relevant, but we would advocate asking for it anyway. You never know what you might need down the road and it’s always better in these cases to get more data than not enough data. Along those lines, we also highly recommend asking for at least 30 days worth of records on either end of your incident date. This is because usage and pattern analysis is sometimes relevant. For example, in case study #2, the claimant had a block of time of 7 hours in the middle of the day immediately after the alleged theft where they did not use their phone. Is this relevant? It depends on the case, but most people will use their phone at least a few times for texts, calls or data during the hours of noon to 7 PM.
If you require assistance or an example of appropriate wording for your subpoenas, please contact us and we’ll be happy to provide it.
After the records have been obtained, you must get a qualified expert to review them. Yes, this statement is self-serving, but your IT guy cannot do this. Moreover, your IT guy can’t testify to the findings in an adequate manner. While the records may look straight-forward on their face, the devil is truly in the details. Time zones may varying within the same record and each carrier has their own way to present the information, full of quirks and nuances. Some records are in one large combined record. Others are a series of spreadsheets, each with the call detail referring to a third cell site listing. The analysis can be quite complex and as the old adage goes, if you think it’s expensive to hire an expert, try hiring an amateur!
A final note about the record return itself: You will be provided the return in electronic format. Keep the original and provide that to your records analyst/expert. DO NOT alter, pare down or edit the record in any way. If you do, make a working copy, label it as such and keep the original that was provided by the carrier. Ultimately, the original record is evidence and evidence must be maintained in its purest form.
Effective presentation of the final product is also very important. If the report or demonstrative exhibits are hard to understand, the effectiveness of the analysis and ultimate findings and conclusions is lost to some degree (or perhaps entirely). We produce a slide deck with brief, concise explanations of what will be shown in the deck and a step-by-step breakdown of each call and its associated location data. We also provide animations in the slide deck to illustrate where the device was leading up to, during and after the time of the incident. As appropriate, we will provide concise conclusions, utilizing the record and the available testimony of the claimant. This proves extremely effective in presenting the findings of the analysis to judges, juries and/or opposing counsel. We’re proud to say that one Virginia Prosecutor recently referred to our final product in his case (yes, we also work for the prosecution) as “the Gold Standard” after having retained Pro Digital for a serious felony case, and subsequently using both state and federal resources for other cases.
Wrapping It Up
The effective use of cellular records analysis and mapping in civil insurance claims and investigations is simply building a better mousetrap. Sometimes in these cases, hundreds or thousands of man-hours go into investigation and proving or disproving the claimant’s statements and ultimately, the claim itself. By taking the proper steps to preserve, request, analyze and present these records and the conclusions they help lead us to, we save time and money. The best part about these records is the account-holder and claimant doesn’t have access to them. They are pure evidence, directly from the cellular provider and only available through subpoena. How often do you get evidence to that level of purity in your cases?
Patrick J. Siewert
Professional Digital Forensic Consulting, LLC
Virginia DCJS #11-14869
Based in Richmond, Virginia
Available Wherever You Need Us!
We Find the Truth for a Living!