Preserving Key Evidence
To bring a successful case against a trucking company, it is necessary that all relevant evidence be preserved. The FMSCA requires certain documents be kept for a defined period of time. However, after a short period of time has passed, the company can destroy the documents. Further, the company may have no obligation to preserve other key evidence.
The best way to ensure all relevant evidence is preserved is by sending the driver and trucking company a spoliation letter. Spoliation is the destruction or the failure to preserve evidence that may be relevant in litigation. A spoliation letter gives “actual notice” to the trucking company that you intend to bring a lawsuit against. Once the trucking company receives this notice, they are legally obligated to preserve all relevant evidence, even beyond the FMSCA requirements. Further, the letter warns the trucking company that if they fail to preserve the evidence, they can be sanctioned or punished by the Court. Often, we include the following language in a spoliation letter.
What is Constructive Notice?
Even if a spoliation letter is not sent, the trucking company may still have a duty to preserve evidence because they have “constructive notice.” Unlike “actual notice,” a company has constructive notice if based on the wreck they can reasonably anticipate that litigation will occur. Basically, if a trucking company killed or injured someone in a wreck, they would have “constructive notice” of an impending lawsuit. Because they have constructive notice, they have an obligation to preserve evidence.
Key Evidence in a Commercial Trucking Case
If you have been involved in a wreck with a commercial truck, it is important to obtain and preserve any evidence that may be related to the wreck. This evidence is crucial to bringing a successful lawsuit. Commercial motor vehicles are governed by the Federal Motor Carrier Safety Administration (FMCSA). The FMSCA has regulations that require commercial trucking companies to keep certain documents. These documents become crucial during a lawsuit. Some examples include:
- Pre- and Post-Trip Inspections – Commercial truck drivers must perform pre- and post-trip inspections at the beginning and end of each day. These inspections can be important for determining if the vehicle was properly maintained and safe, or if the driver was performing proper inspections. The FMSCA requires that these records be kept for 3 months.
- Driver’s Logs – Each driver must maintain a rolling log of his hours of operation. These records are required to be kept in an electronic format called EDLs. Commercial truck drivers can only operate their trucks for a certain number of hours per week, and wrecks often occur when drivers are overworked and tired. These logs are key to identifying if a driver is exceeding his allowed hours. The FMSCA requires that these records be kept for 6 months.
- Hours of Service Supporting Documents – Drivers are also required to keep documents that support their Driver’s logs. This may include bills of lading or an expense report. A bill of lading is a document issued by a carrier to acknowledge receipt of cargo for shipment. These documents can be key in ensuring driver’s logs have not been falsified. Like driver’s logs, these documents must be kept for 6 months.
- Maintenance and Repair Documents – Wrecks occur when trucks are not properly maintained and inspected. Trucks should be regularly inspected and maintained to ensure they can operate safely on the road. Maintenance records are one of the ways to determine if a truck has been properly maintained and is safe on the road. The FMSCA requires that these records be kept for 1 year.
While these documents may be important in a trucking case, there is other evidence that can be important that the FMSCA does not require that operators preserve. For example,
- The Truck – It is important in litigation to inspect all involved vehicles after the wreck, including the commercial truck. Ideally, an inspection would be performed before any repairs have been made.
- Data from the truck’s black box – Each commercial motor vehicle is equipped with a black box called an event data recorder or EDR. The EDR records key events as they are occurring in real-time. For example, if a truck is in a wreck, the EDR will record speed and braking data for the twenty seconds leading up to the wreck.
- The driver’s cell phone – Cell phone data can show if the driver was distracted when the wreck occurred.
Spoliation and Sanctions
Once a spoliation letter has been sent to a trucking company, the company has a legal obligation to preserve all relevant evidence. However, sometimes a company may still fail to do so. At this point, a Court can be asked to levy sanctions. Sanctions are punitive measures the Court may take against parties during litigation based on their behavior, and the Court may impose sanctions for the spoliation of evidence. To determine what an appropriate sanction is, the Georgia courts look at five factors:
- Whether the aggrieved party was prejudiced because of the destruction of evidence.
- Whether the prejudice can be cured without sanction.
- The practical importance of the evidence.
- Whether the spoliating party acted in bad faith; and
- The potential abuse if testimony about the evidence is allowed.
After reviewing the factors, the Court can impose a broad range of sanctions. It can exclude testimony regarding certain evidence. It can switch which party has the burden of proof at trial. It can go as far as striking the trucking company’s answer to the lawsuit. The threat of these powerful sanctions ensures that trucking companies take seriously their duty to preserve evidence, especially after a spoliation letter has been sent.
If you’ve been injured in a truck accident, an experienced personal injury attorney can protect your rights by helping to preserve key evidence from the crash. They can do this by drafting and sending a spoilation letter to the truck driver and trucking company.