Evidence Preservation in Trucking Injury Cases Crafting Spoliation - - PowerPoint PPT Presentation

Evidence Preservation in Trucking Injury Cases

Crafting Spoliation Letters, Securing Key Documentation, and Challenging Evidence Destruction

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1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific

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TUES DAY, APRIL 1, 2014

Presenting a live 90-minute webinar with interactive Q&A

Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates LLC, Toledo, Ohio Eric J. D. Rogers, Attorney, Fried Rogers Goldberg LLC, Atlanta Elizabeth Jones S atterfield, Attorney, Baker Donelson Bearman Caldwell & Berkowitz PC, Atlanta

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• Federal Motor Carrier Safety Regulations
• Document Retention Timelines
• Department of Transportation
• Multiple Defendants
• Technology and Government Databases
• Third Party Vendors

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• Regulations that pertain to all Interstate

motor carriers operating in the USA

• State the minimum documents that a

company must maintain in order to operate

• State the minimum time specific documents

must be kept

• SIZE DOESN’T MATTER!

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• Logs, daily inspection sheets: 6 Months
• Maintenance records: 1 year
• Driver Qualification File: 3 years after last

date of employment

• Qualcomm, GPS, ECM: None

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 Driver  Motor Carrier  Tractor Owner  Trailer Owner  3rd Party Maint./Repair  Yard Owner  Loader/unloader  Broker  Shipper  Freight Forwarder  Consignee  Logistics Company  Insurer

They Can All Have Independent Liability and Evidence

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 Get Safersys and CSA data early  Broker Liability – negligent retention of motor carrier.

How does Safersys and CSA come into play?

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• Eg.: QualComm, Log Audits, GPS Tracking, Fuel

Monitoring, VORAD

• Trucking companies use outside vendors to help run

their companies

• Information created by these vendors is not always

stored on company servers

• You don’t know who the trucking company uses, but

they do.

• No requirements to maintain this information by law

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 Qualcomm  Blackbox – ECM and ABS  Vorad  EOBR – Electronic logging  Onboard Video  GPS  Combined Systems

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 Most large truck engines have ECM responsible for monitoring

and controlling important engine and vehicle parameters such as speed, throttle, and braking.

 Most record data for rapid deceleration  Many can record speed, clutch & brake status, & throttle position  Some record “last stop” data  Depends on the engine make, model and year.  When in doubt, call dealer.

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 Since 1987, the most popular engine for Class 8 trucks is

the Detroit Diesel Series 60.

 Fallen off a bit since 2001, but still very popular  Most Freightliner trucks  Prior to 1998 – DDEC III – did not store any data without

add on module

 Post 1998 – Data recorded  Gets better with each release  DDEC is most advanced ECM

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 The last stop record - triggered when truck is stopped for

more than x length of time – factory set at 15 secs.

 When triggered, will record activity from 1 minute 45

seconds before the stop through 15 sec after stop.

 When the vehicle is moved again, this data is

• verwritten and lost forever.

 Do you want to move the vehicle after the crash?

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 Hard brake report - triggered when tractor decelerates at

• r above a certain preprogrammed rate.

 The factory default is 7 mph/second.  Once triggered, the ECM will record activity for 1 minute

before and 15 seconds after the threshold is met.

 Usually the last 2 hard brakes are recorded  Diagnostics and engine run time reports – Show serious

faults

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 How is this useful to you?  Last Stop and Hard Brake Reports capture the following

data in 1 second intervals:

 Wheel speed (mph)  Engine speed (rpm)  Engine load (percent)  Throttle position (percent)  Brake status (on/off)  Clutch status (on/off)  Cruise control status (on/off)

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FRIED ROGERS GOLDBERG LLC www.thetruckingattorneys.com

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 Used in Peterbilt, Kenworth & International tractors.  Caterpillar engine ECMs have been able to record sudden

decelerations (“quick stops”) since 1995, but the factory default is set to not record any such data.

 no way to know if data is there without downloading the

box

 Starting in 2007 the engines started being shipped with

“quick stop” function set to “on.”

 Records 45 sec of data before trigger and 15 seconds of

data after trigger.

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 The Quick Stop records:  Wheel speed (mph)  Engine load (percent)  Service brake status (on/off)  Clutch status (on/off)  Cruise control status (on/off)  Other parameters defined by end-user  Snapshot Report – critical fault – 9 seconds before and 3

seconds after – good if mechanical issue is suspected

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 Used in Peterbilt, Kenworth and International tractors.  Before late 2005, little data unless optional “Road Relay”

module – Most did not have it

 Now - must Cummins engines do contain EDR data as

follows in 1 second intervals:



Wheel speed (mph)



Engine speed (rpm)



Engine load (percent



Throttle position (percent)



Brake status (on/off)



Clutch status (on/off)



Cruise control status (on/off)



Lamp status (on/off)

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 You need two separate software set ups to download a

Cummins engine ECM.

 Insight –downloads engine settings/maintenance data  Powerspec- downloads the sudden deceleration data  panic stop report -triggered when deceleration meets or

exceeds a pre-set threshold.

 The factory default is usually 9 mph/second.  Records 1 minute before and 15 seconds after trigger  Up to three panic stops can be recorded.

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 Makes own engines  Since 1998 EDR called V-Mack

 Records 2 incidents  Threshold 10mph/sec decel

 Late Model records one Braking and one Last Stop  Records 16 seconds before and after, usually in 0.2

second intervals. Speed is rounded to nearest mph.

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 Mack incident report records:

 Wheel speed (mph)  Engine speed (rpm)  Up to 8 switches usually including

 Brake status (on/off)  Clutch status (on/off)  Cruise control status (on/off)  Key switch (on/off)

 Mack has not made its software publically available. To

• btain a download, the ECU must be removed and sent

to one of two authorized third parties:

 East Coast: Time Cheek, PE, www.deltavinc.com  West Coast: John Steiner, www.levaeng.com

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 Makes own engines but sometimes uses Cummins  Before 2007 – no useful info  By some reports, engines built in 2007 have an incident

report capabilities similar to those in Mack trucks, but this information has not been verified.

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 Trucking company is notified immediately and

activates well-oiled plan to defend

 1 hour response  Immediate Response Teams  Lawyer Directed Investigation – is it privileged?

 Police are usually not trucking experts  Evidence can be lost

 ECM  Logs and support  Documents are how you build additional theories of

liability

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 Act immediately to preserve what can be preserved:

 Activate your Immediate Response Team  Secure all scene evidence  Secure vehicles and ECM evidence

 Write Spoliation Letter for everything else

 What’s good for the goose…

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 Do not be a hypocrite  Preserve your vehicle. Give Defense an opportunity

to inspect your vehicle

 What other evidence do you have control of that

you can preserve?

 When going before the judge, you need to be the

most fair person.

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Spoliation Letters

A spoliation letter should be sent as soon as possible to the driver, trucking company and insurer requesting the preservation of evidence.

• Trucking companies have routine document destruction policies.
• Describe items of evidence and explain to the other side that this evidence

is crucial to your case.

• Remember to request that the company preserve the Electronic Control

Module (ECM)

• Ethical considerations require that you give no legal advice.
• The purpose of the spoliation letter is to ensure the most severe sanctions

available.

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 Two Competing Theories

 General Topics:

 Pros:

 Provides specific items that you can cite later in brief  No confusion in what you are asking for  Can list as many items as you want

 Cons

 You don’t know their business  Can be viewed as over burdensome  Gives the defense an excuse for not preserving relevant evidence

Send by certified mail!

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 Two Competing Theories

 Detailed list of items to preserve

 Pros:

 Puts the Burden on trucking company to know what relevant documents there are  Company knows their internal procedures better than you  Looks more reasonable

 Cons

 Not a common practice, so unsure how companies will respond  Defense will argue that additional claims were unexpected  Didn’t know evidence was going to be relevant

Send by certified mail!

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 Anticipation of Litigation  Control Over Evidence  Evidence Not Available  Plaintiff Prejudiced  Evidence Relevant to Claims

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 Anticipation of Litigation

 Knowledge of an accident not enough  Must show they had reason to believe claim would be filed

 Proof of service of spoliation letter  Knowledge of insurance company not enough  Depose person who received letter to prepare for motion

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 Control over evidence

 Must show they had the ability to preserve the evidence

 Owner-Operators control their tractor-trailer, not the company  DOT and Police may take evidence from company  Must show they had control or possession of evidence at the time they received

notice of potential claim.

 Destroying evidence prior to required retention time can be grounds for sanctions without notice of claim 53

 Evidence not available

 Documents or evidence must not be available for you to inspect

 Cannot force a company to store a vehicle indefinitely (unreasonable)  Can evidence be obtained from another source?  Must show that evidence actually existed at one time

 What would the ECM show if we could have downloaded it? 54

 Plaintiff Prejudiced

 Plaintiff must be prejudiced in the prosecution of their case by lack of

evidence

 What would the evidence have proved?  Can you prove this another way?  Could skid marks show speed without ECM?  Could GPS data show time driving if logs are gone?

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 Evidence Relevant

 Evidence must be relevant to the reasons the accident happened

 What are all your theories of negligence?  Who are your Defendants?  What do you need to prove to support these claims?  How would this evidence have helped me?  Is there other evidence that supports my position?



• Eg. Driver said he was tired at the scene could support claim he was over hours, so log books would be

relevant. 56

 Sanctions against offending party in underlying

negligence action

 Most Popular: A negative inference that evidence would have harmed

the spoliating party.

 Most states have this sanction  Inference given is based on destroyed evidence

 Exclusion of Expert Testimony

 If material reconstruction evidence is destroyed, then offending party cannot have

expert testimony about cause of accident. (Can be as bad a striking answer)  Exclusion of other evidence  Striking of Pleading (Most severe)

 This can be the striking of an Answer or Dismissing a Complaint  Bad Faith Requirement in some jurisdictions

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 Independent Cause of Action:

 Must prove the same elements of a discovery sanction  Who was the party that had control?  Was it intentional or negligent?  What were your damages?

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THE WORST CASE SCENARIO

EVIDENCE INVOLVED IN THE BATTLE:

• DRIVER

QUALIFICATION FILE

• LEASE AGREEMENT
• PLACARDS

 PN EXPRESS v. ZEGEL  Vicarious Liability  Missing Documents  Jury Instruction  Applied Statutory Employment  The absence of evidence WAS

the evidence

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EVIDENCE INVOLVED IN THE BATTLE:

 SILLMAN v. ASSOC.

BELLMEADE

 “Contemplated or Pending”

Litigation

 Notice of Representation  Preservation Letter  NOT anticipation of litigation  How does this relate to trucking

cases?

 ECM v. Logs

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DEFENSE APPROACH: HOW TO AVOID SPOLIATION FMCSA REGULATIONS RE: RETENTION VS DOT PRESERVATION/SPOLIATION

 “I’m not required to keep that by

law”

 “The insurance company is taking

care of this”

 “Why do we need to do this?”  Attorneys should do their own

verification of the search

 Save documents in house. Do not

rely on others.

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 Have a document retention policy and FOLLOW IT  Get legal counsel involved early  Don’t rely on the insurance company to “take care of

it”-you have responsibility

 Take preservation demands seriously  Go on the offensive

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Eric J.D. Rogers Michael J. Leizerman Fried Rogers Goldberg LLC E.J. Leizerman & Associates LLC Atlanta, GA Toledo, OH 877-591-1801 800-628-4500 eric@frg-law.com michael@leizerman.com Elizabeth J. Satterfield Baker Donelson Bearman Caldwell & Berkowitz PC Atlanta, GA 404-589-3410 esatterfield@bakerdonelson.com