Evidence Preservation in Trucking Injury Cases Crafting Spoliation Letters, Securing Key Documentation, and Challenging Evidence Destruction

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TUESDAY, 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 Satterfield, 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 overwritten 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 or 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 36

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 obtain 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

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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?

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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.

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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