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Truck accident attorney litigation tip: When discarding data becomes spoliation of evidence

Written by Steve Gursten Posted February 5th, 2014

Failing to preserve data may be spoliation — based on industry standards and the reasonable anticipation of litigation after a serious truck wreck

truck lawyer tip spoliation of evidence

When a serious truck accident occurs, large trucking companies usually have an emergency response team on standby that, together with the defense lawyer, rushes to the scene and begins working on the defense strategy immediately.

The team, made up of insurance adjusters, defense lawyers, sometimes truck company management, investigators and even accident reconstructionists, starts building a defense case as soon as they get that ominous phone call that there’s been a big truck accident.  This is now expected in any catastrophic truck injury or fatality.

In fact, the attorneys here at the Roundtable have handled cases where some part of a  truck company’s emergency response team arrived at the crash site even before the police got there.

But these defense teams can be a gift.  Effective accident lawyers must be aware of these emergency accident response teams, and the work they do.  Not just because they often are used to cover up negligence that occurred on the trucking company’s behalf, but because a company that goes to the cost and expense of sending a team out will have harder time explaining why they destroyed critical documents central to the injury or wrongful death later in litigation.

A truck accident is also quite different from a typical car accident. There are troves of evidence that simply don’t exist in a car crash. It’s critical to get information from on-board data recorders, and from electronic logging devices (ELDs) if the semi-truck is equipped with such.

You may wonder, when the “early response teams” (as these insurance defense teams have been called) get out to a truck accident before the truck accident lawyer, or even before the police, is that legal?


It’s also legal for truck companies to dispose of critical documents that can prove negligence, such as log books, receipts, pre-trip inspection reports and black box data, after a very short period of time.

That’s why it’s critical for truck attorneys to get spoliation letters  sent out on behalf of your clients as soon as possible.

But what happens when it’s too late?

What happens when a client comes to you seeking representation months after the truck wreck – or, as we often see, a local attorney asks us to get involved a year or more later? What should the accident attorney do in a situation where a trucking company no longer has data from a data recorder? What if the information on the data recorder is not saved, downloaded, or otherwise available?

The answer to that question is not black and white. There is no express statutory, nor any regulatory requirement, that specifies data from a data recorder must be downloaded or preserved. But that being said — you may not be out of luck:

If a truck accident is significant, it certainly may be argued that the industry standard is to download the data and preserve it. When this data is discarded, it looks an awful lot like spoliation of evidence.  It certainly wouldn’t be discarded if the data had been exonerating.

Beyond that, there is a duty to preserve evidence whenever litigation is “reasonably anticipated.” This duty can be triggered even before a lawsuit is filed if a party is on notice that future litigation is likely to follow. See Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007).

Of course, discarding information in this context certainly is spoliation of evidence.

TRUCK LAWYER TIP: A truck accident lawyer could try arguing that in a serious truck wreck future litigation is reasonably anticipated. The truck accident lawyer could even point to the fact that the insurance defense team immediately investigated the scene.

After all — that’s what these rapid response teams are for: To gather (and sometimes twist and hide) facts and information, so that bad trucking companies who hurt or kill people can shirk responsibility for causing serious truck wrecks when litigation later occurs.

Related information:

10 tips to maximize truck accident settlements and jury verdicts

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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