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Why a records preservation letter is so important in a truck injury lawsuit

Written by Steve Gursten Posted October 13th, 2016

Truck litigation tip No. 5: When attorneys should send a records preservation letter – and how

records-preservation-letter

Last week, we discussed the importance of why attorneys in a truck accident lawsuit should take photos of the cab of the tractor trailer and the scene of a serious wreck. The most important reason to do this is so the attorney can preserve evidence, which may even lead to new theories of liability, such as negligent entrustment, monitoring and supervision.

Today we’ll be covering another critical truck accident litigation tip for lawyers handling motor vehicle crash cases involving trucks: The records preservation letter.

In conjunction with a rapid initial liability investigation, plaintiff’s truck attorneys should put the motor carrier, driver and insurer on notice to preserve evidence.

This is essential to your discovery, since electronic evidence and some documents may legally begin to disappear within days or weeks.

Don’t think for a moment that defense lawyers or insurance investigators are not combing through the log books and other records that show negligence, and waiting for the first possible day they can quite legally destroy this evidence so that it cannot be later be found and used against them by a truck lawyer.

It happens all the time.

It is happening to inexperienced lawyers handling their first truck accident lawsuits even as I type these words. It has become a part of the defense playbook in high stakes trucking accidents.

Therefore, it’s imperative as an attorney to send your preservation of evidence notice letter almost immediately upon signing the case!

This is also one of the biggest differences between truck and car wreck cases. As an attorney, I often tell people who call me who are injured in car wrecks that it’s okay to wait, you don’t need to hire a lawyer immediately. With trucking cases, we’re often racing against a clock, and need to at least put the trucking company on notice to preserve certain key documents and records before they are lost forever.

Since most of our cases at the Truck Roundtable come as attorney referrals from other lawyers, this is often our biggest challenge when we’re involved in cases months or sometimes years after a crash.

Ask for the “essentials” in spoliation letter

It’s also prudent to pare down a template spoliation letter to those items that are reasonably likely to exist and that will be relevant in the particular case, lest a trial judge find the length of the list of items designated to be overly broad and burdensome.

What if the trucking company ignores the preservation of evidence letter?

Destruction after a preservation of evidence letter should result in a jury instruction at trial that a jury could presume the destroyed evidence was adverse to the company.

BEWARE: Failure to preserve evidence after being put on notice to do so may result in spoliation sanctions including admission or exclusion of evidence, an adverse inference jury instruction, and in federal court, striking of the Answer.

Unfortunately, there are many states that do not recognize an independent, third-party action for evidence spoliation.

See generally: Thurman-Bryant Electric Supply Co., Inc. v. Unisys Corp., Inc., 1991 WL 222256 (Tenn. Ct. App. Nov. 4, 1991); Foley v. St. Thomas Hosp., 906 S.W.2d 448 (Tenn. Ct. App. 1995). Note that in Adkins v. Wolever, 554 F. 3d 650 (6th Cir. En Banc 2009), the 6th Circuit joined every other federal circuit to consider the issue and held spoliation, including sanctions, is a matter of federal, not state law.

 

Steve Gursten

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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