Duke Defense Seeks Accuser's Cell Phone

May 23, 2006 — -- Defense attorneys in the Duke University lacrosse team rape allegation case have received more than 1,200 pages of documents, two video tapes and a disc full of photographs from Durham District Attorney Mike Nifong, but they are still -- anxiously -- waiting on what they say could be a key piece of evidence.

Attorney Kirk Osborn, who represents lacrosse player Reade Seligmann, said he's been trying to get access to the alleged victim's cell phone since May 1, the day he learned from the players that police had recovered the phone during a search of the home where the party took place.

Osborn urged a judge to order Nifong to give him access to the phone before the information on it is lost, but the request was denied.

Nifong did not return a call to his office seeking comment.

Three Duke lacrosse players have been charged with first degree rape, kidnapping and sexual offense in connection with the alleged attack.

Defense attorneys believe valuable information about the alleged victim's conversations and movements in the hours before the party could be irrevocably lost if the phone's battery dies before they can get access to it.

DNA recovered from vaginal swabs of the alleged victim matches one man who is not a lacrosse player. In addition, she acknowledges having had sex with at least two men sometime before the lacrosse party, sources tell the ABC News Law & Justice Unit.

The fact that she may have had relations with those individuals alone does not mean she was not raped at the lacrosse party. Rather, defense attorneys are likely hoping for evidence that she called one or more of those men during the time period she says the assault took place.

Why are defense attorneys so anxious to get their hands on the cell phone itself? ABC News spoke with data retrieval experts who confirmed that when a cell phone's battery runs out, what's called "volatile data" -- such as text messages, photos, and call logs -- can be lost.

Although lawyers can subpoena the user's phone company for incoming and outgoing call records, some of the information within the phone itself does not exist with the phone company. Once the cell phone's battery goes, that information goes with it.

"If you're out of battery, you're out of luck,'' said Joe Miller of Data Recovery Lab in New Jersey.

The motion seeking access to the phone was hand-delivered to Nifong on May 2, Osborn told ABC News.

"Nothing happened,'' he said. "I got no response.''

On May 17, Osborn filed a motion from a data collection expert "stating the importance of preserving the phone and getting access to the phone immediately,'' he said.

"If it is not done and not done now, " Osborn told a judge last week in court, "the battery loses its charge and the data in the phone itself disappears."

Cell phones store non-volatile, or "flash'' memory, designed to retain information even with the loss of power, and volatile data, which is subject to the phone's charge. How data is stored varies from phone to phone.

"Volatile memory needs power to store that information in your phone,'' said Jason Straight, an attorney who specializes in electronic data recovery for KrollOntrack, an electronic discovery and computer forensics company. "Once the power is drained, that stuff is unrecoverable.''

"You'd want to keep that phone plugged in all the time,'' Straight said. "But I suspect enough time has passed already that if it's going to die, it's dead already.''

Thomas Younce, president of the North Carolina Association of Chiefs of Police, said that "it's really going to depend on the department to decide what needs to be done to maintain evidence.

"But if it was our department,'' he said, "we would keep it charged.''