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.
The Analysis
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?
Author:
Patrick J. Siewert
Principal Consultant
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!
Computer Forensics --
Mobile Forensics -- Specialized Investigation
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond,
Virginia. In 15 years of law
enforcement, he investigated hundreds of high-tech crimes, incorporating
digital forensics into the investigations, and was responsible for
investigating some of the highest jury and plea bargain child exploitation
investigations in Virginia court history. Patrick is a graduate of SCERS, BCERT, the
Reid School of Interview & Interrogation and multiple online investigation
schools (among others). He is a
Cellebrite Certified Operator and Physical Analyst as well as certified in
cellular call detail analysis and mapping. He continues to hone his digital forensic
expertise in the private sector while growing his consulting &
investigation business marketed toward litigators, professional investigators
and corporations, while keeping in touch with the public safety community as a
Law Enforcement Instructor.
