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

Preserving Evidence in Trucking Injury Cases: Motor Carrier Certificates, Engine Control Module Data and More

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

Today’s faculty features:

THURSDAY, SEPTEMBER 10, 2015

Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates, Toledo, Ohio Eric J. D. Rogers, Attorney, Fried Rogers Goldberg, Atlanta

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

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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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**WARNING**WARNING**WARNING You are accessing a U.S. Government information system. This information system, including all related equipment, networks, and network devices, is provided for U.S. Government-authorized use only. Unauthorized or improper use of this system is prohibited, and may result in civil and criminal penalties, or administrative disciplinary action. The communications and data stored or transiting this system may be, for any lawful Government purpose, monitored, recorded, and subject to audit or investigation. By using this system, you understand and consent to such terms. **WARNING**WARNING**WARNING

WELCOME TO SAFER

The FMCSA Safety and Fitness Electronic Records (SAFER) System offers company safety data and related services to industry and the public over the Internet. Users can search FMCSA databases, register for a USDOT number, pay fines online, order company safety profiles, challenge FMCSA data using the DataQs system, access the Hazardous Material Route registry, obtain National Crash and Out of Service rates for Hazmat Permit Registration, get printable registration forms and find information about other FMCSA Information Systems.

Notice PLEASE NOTE: The FMCSA has implemented a more stringent credit card and transaction verification procedure. All credit card transactions now require verification of the credit card number, expiration date, security code, billing address and telephone number. To update your Docket Number (Operating Authority) information electronically, you will need a Personal Identification Number (PIN). A separate Personal Identification Number (PIN) is required to update your USDOT Number information electronically. Click here to request your Docket Number PIN and/or USDOT Number PIN. Allow 4 to 7 business days to receive your PIN by mail. Enforcement users must now use the FMCSA Portal link to SAFER to access SAFER Enforcement Related Functions. FMCSA Services FMCSA Registration & Updates Company Safety Profile Company Safety Profile Subscription Online Fine Payment MCMIS Data Dissemination Catalog SAFER Information About SAFER SAFER News Company Snapshot Updates Frequently Asked Questions Enforcement Users: Please use FMCSA Portal Login FMCSA Searches Company Snapshot Analysis & Information (A&I) Online Licensing & Insurance Orders to Cease Operation (OCO)/ Out of Service Orders (OSO) Cargo Tank Crash Rate & Inspection Out

• f Service (OOS) Rates for

Hazardous Materials Safety Permit Program (Calculated on

05/01/2012)

FMCSA Registration Forms Other FMCSA Web Sites FMCSA Home Page DataQs FMCSA Information Systems National HM Route Registry ITS CVISN FMCSA Portal

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Company Snapshot

The Company Snapshot is a concise electronic record of a company’s identification, size, commodity information, and safety record, including the safety rating (if any), a roadside out-of-service inspection summary, and crash information. The Company Snapshot is available via an ad-hoc query (one carrier at a time) free of charge.

Search Criteria

Users can search by DOT Number, MC/MX Number or Company Name.

USDOT Number MC/MX Number Name Enter Value: paschal

Search SAFER Home | Feedback | Privacy Policy | USA.gov | Freedom of Information Act (FOIA) | Accessibility | OIG Hotline | Web Policies and Important Links | Plug-ins Federal Motor Carrier Safety Administration 1200 New Jersey Avenue SE, Washington, DC 20590 • 1-800-832-5660 • TTY: 1-800-877-8339 • Field Office Contacts

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11/ 13/ 12 8:56 PM SAFER WEB - Select Company

Possible Keyword Matches

CARRIER/DBA NAME LOCATION ANDREW C PASCHALL COTTAGE GROVE, TN ANGELA VESTA PASCHAL MAYODAN, NC DARRELL M PASCHALL BURLINGTON, WI DAVID WAYNE PASCHAL REIDSVILLE, NC GORDON AND MADELAINE PASCHAL EXPEDITED TUCSON, AZ GREGORY PASCHAL ATLANTA, GA HERBERT V PASCHAL JR PICKENS, SC JEVON PASCHALL BOWLING GREEN, KY JOHN PASCHAL ROCKMART, GA KARL PASCHALL UPTON, WY KENDRED PASCHALL FARMS MURRAY, KY MADELAINE PASCHAL TUCSON, AZ MEREDITH PASCHAL CONCRETE INC ANDERSON, IN MICHAEL PASCHALL NEW WINDSOR, NY MIKE PASCHAL CONCRETE INC ANDERSON, IN NORMAN W PASCHALL COMPANY INC PEACHTREE CITY, GA PASCHAL & SHAW SUPPLY INC JACKSONVILLE, FL PASCHAL BOBBY VOYLES RESACA, GA PASCHAL BURIAL VAULT&CREMATION SERVICES LLC HUDSON, MI PASCHAL ENTERPRISES LLC SOUR LAKE, TX PASCHAL LAWN CARE ROCKMART, GA PASCHAL MOMANYI ARLINGTON, TX PASCHAL TREE SERVICE UNION CITY, IN PASCHAL WRECKER SERVICE DEARING, GA PASCHALL FARMS COTTAGE GROVE, TN PASCHALL FARMS LLC YPSILANTI, MI PASCHALL HOME SOLUTIONS BURLINGTON, WI PASCHALL SERVICES INC MURRAY, KY PASCHALL TRUCK LINES INC MURRAY, KY PASCHALL TRUCKING STAR CITY, AR PASCHALL TRUCKING WINTER HAVEN, FL PASCHALL TRUCKING INC FLORISSANT, MO PASCHALLS GREENHOUSE & NURSERY MURRAY, KY ROBERT PASCHAL KNOXVILLE, TN ROBERT PASCHAL JR UNION CITY, IN SHANE PASCHAL WELDING SOUR LAKE, TX STEVE D PASCHAL CARROLLTON, GA STEVEN E PASCHALL PURYEAR, TN THOMAS EDWARD PASCHAL JR GREENSBORO, NC WAYNE PASCHALL STAR CITY, AR WES & LYNN PASCHALL GILLETTE, WY WILLIAM E PASCHALL WINTER HAVEN, FL

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…s

Other Information for this Carrier SMS Results Licensing & Insurance

USDOT Number MC/MX Number Name Enter Value: PASCHALL TRUCK LINES

Search

Company Snapshot

PASCHALL TRUCK LINES INC USDOT Number: 105234 ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating

Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you can do so using FMCSA's DataQs system. Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in

• btaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
• rder page or call (800)832-5660 or (703)280-4001 (Fee Required).

For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help. The information below reflects the content of the FMCSA management information systems as of 11/12/2012.

Entity Type: Carrier Operating Status: REGISTERED Out of Service Date: None Legal Name: PASCHALL TRUCK LINES INC DBA Name: Physical Address: 3443 US 641 SOUTH MURRAY, KY 42071 Phone: (270) 753-1717 Mailing Address: PO BOX 1080 MURRAY, KY 42071-0018 USDOT Number: 105234 State Carrier ID Number: MC or MX Number: MC-111485 DUNS Number: 62-975-578 Power Units: 1,157 Drivers:

1,289

MCS-150 Form Date: 09/28/2012 MCS-150 Mileage (Year): 123,822,787 (2011) Operation Classification: X Auth. For Hire

Exempt For Hire Private(Property)

• Priv. Pass.

(Business)

• Priv. Pass.(Non-

business) Migrant U.S. Mail

• Fed. Gov't

State Gov't Local Gov't Indian Nation

Carrier Operation: X Interstate

Intrastate Only (HM) Intrastate Only (Non-HM)

Cargo Carried: X General Freight

Household Goods Metal: sheets, coils, rolls Motor Vehicles Drive/Tow away Logs, Poles, Beams, Lumber Building Materials Mobile Homes Machinery, Large Objects Fresh Produce Liquids/Gases Intermodal Cont. Passengers Oilfield Equipment Livestock Grain, Feed, Hay Coal/Coke Meat Garbage/Refuse US Mail Chemicals Commodities Dry Bulk Refrigerated Food Beverages Paper Products Utilities Agricultural/Farm Supplies Construction Water Well

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…s

Other Information for this Carrier SMS Results Licensing & Insurance

USDOT Number MC/MX Number Name Enter Value: PASCHALL TRUCK LINES

Search

Company Snapshot

PASCHALL TRUCK LINES INC USDOT Number: 105234 ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating

Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you can do so using FMCSA's DataQs system. Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in

• btaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
• rder page or call (800)832-5660 or (703)280-4001 (Fee Required).

For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help. The information below reflects the content of the FMCSA management information systems as of 11/12/2012.

Entity Type: Carrier Operating Status: REGISTERED Out of Service Date: None Legal Name: PASCHALL TRUCK LINES INC DBA Name: Physical Address: 3443 US 641 SOUTH MURRAY, KY 42071 Phone: (270) 753-1717 Mailing Address: PO BOX 1080 MURRAY, KY 42071-0018 USDOT Number: 105234 State Carrier ID Number: MC or MX Number: MC-111485 DUNS Number: 62-975-578 Power Units: 1,157 Drivers:

1,289

MCS-150 Form Date: 09/28/2012 MCS-150 Mileage (Year): 123,822,787 (2011) Operation Classification: X Auth. For Hire

Exempt For Hire Private(Property)

• Priv. Pass.

(Business)

• Priv. Pass.(Non-

business) Migrant U.S. Mail

• Fed. Gov't

State Gov't Local Gov't Indian Nation

Carrier Operation: X Interstate

Intrastate Only (HM) Intrastate Only (Non-HM)

Cargo Carried: X General Freight

Household Goods Metal: sheets, coils, rolls Motor Vehicles Drive/Tow away Logs, Poles, Beams, Lumber Building Materials Mobile Homes Machinery, Large Objects Fresh Produce Liquids/Gases Intermodal Cont. Passengers Oilfield Equipment Livestock Grain, Feed, Hay Coal/Coke Meat Garbage/Refuse US Mail Chemicals Commodities Dry Bulk Refrigerated Food Beverages Paper Products Utilities Agricultural/Farm Supplies Construction Water Well

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…s

Other Information for this Carrier SMS Results Licensing & Insurance

USDOT Number MC/MX Number Name Enter Value: PASCHALL TRUCK LINES

Search

Company Snapshot

PASCHALL TRUCK LINES INC USDOT Number: 105234 ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating

Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you can do so using FMCSA's DataQs system. Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in

• btaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
• rder page or call (800)832-5660 or (703)280-4001 (Fee Required).

For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help. The information below reflects the content of the FMCSA management information systems as of 11/12/2012.

Entity Type: Carrier Operating Status: REGISTERED Out of Service Date: None Legal Name: PASCHALL TRUCK LINES INC DBA Name: Physical Address: 3443 US 641 SOUTH MURRAY, KY 42071 Phone: (270) 753-1717 Mailing Address: PO BOX 1080 MURRAY, KY 42071-0018 USDOT Number: 105234 State Carrier ID Number: MC or MX Number: MC-111485 DUNS Number: 62-975-578 Power Units: 1,157 Drivers:

1,289

MCS-150 Form Date: 09/28/2012 MCS-150 Mileage (Year): 123,822,787 (2011) Operation Classification: X Auth. For Hire

Exempt For Hire Private(Property)

• Priv. Pass.

(Business)

• Priv. Pass.(Non-

business) Migrant U.S. Mail

• Fed. Gov't

State Gov't Local Gov't Indian Nation

Carrier Operation: X Interstate

Intrastate Only (HM) Intrastate Only (Non-HM)

Cargo Carried: X General Freight

Household Goods Metal: sheets, coils, rolls Motor Vehicles Drive/Tow away Logs, Poles, Beams, Lumber Building Materials Mobile Homes Machinery, Large Objects Fresh Produce Liquids/Gases Intermodal Cont. Passengers Oilfield Equipment Livestock Grain, Feed, Hay Coal/Coke Meat Garbage/Refuse US Mail Chemicals Commodities Dry Bulk Refrigerated Food Beverages Paper Products Utilities Agricultural/Farm Supplies Construction Water Well

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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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 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

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