Spoliation [‘spo-le-‘a-shen]: noun
1. The destruction, alteration or mutilation of evidence, especially by a party for whom the evidence is damaging.
2. Potentially big trouble for motor carriers that fail to retain driver logs, electronic control module or satellite-tracking data, or other information that might be relevant to a catastrophic accident.
Editor’s note: This is the sixth and final installment in CCJ’s The Cost of Risk series.
You experience a catastrophic accident, and a lawsuit against your company goes to trial. After both sides present their cases, the judge tells jurors that because you didn’t download data from the truck engine’s electronic control module (ECM) they are free to conclude that the data was damaging to your company’s case.
That kind of jury instruction is frightening and may sound unfair, but it’s hardly unusual. In virtually every jurisdiction in the nation, your failure to preserve evidence deemed material to the case could lead to a scene such as the one above.
Few trucking companies relish capturing and preserving data that might imply or confirm their driver’s fault in a catastrophic accident. There can be doubts about reliability or concerns about information being taken out of context. But many attorneys who represent trucking companies would much rather argue a case complicated by the presence of adverse information than defend their clients’ decision not to collect and retain it. The legal term for destroying evidence that might be damaging is spoliation, and defense attorneys in civil cases dread few things more.
Spoliation isn’t limited to electronic data. A carrier invites trouble if, for example, it discards a driver’s logs relevant to the accident once the regulatory minimum period elapsed. But carriers seem particularly susceptible to spoliation claims involving data from engine ECMs, trip recorders and event data recorders (EDRs). There are no clear rules regarding what data must be preserved following a major accident. Crafty plaintiffs’ attorneys may demand all manner of documents and data during discovery. Then they use the non-existence of that information against the carrier during the trial. The carrier is especially vulnerable if its handling of data and documents departed from its usual practice. Whether carriers adopt clear policies on what information to obtain after a major accident or deal with the issue on a case-by-case basis, consistency is critical.
Being a spoilsport
Many defense attorneys recommend that carriers preserve everything they have related to the driver and the truck, including ECM and positioning data. “The consequences of the suggestion to the jury that a company was engaged in some sort of cover up are worse than any evidence that might be revealed in any records they preserve,” says Clay Porter, a partner in the firm Dennis, Corry, Porter & Smith. To make his point, Porter declares that he would rather defend a carrier whose driver, according to satellite positioning data, blatantly violated hours-of-service rules and falsified his logs than a carrier that prematurely destroyed data related to the accident.
