Strategies for Preserving Evidence after an Accident: Preserving Data, Lots of Data
This series will address the various types of documents, electronic, human, and physical evidence that can and often will exist after a motor vehicle accident (including accidents involving commercial motor vehicles) and what should be done to preserve the evidence for future litigation. Part 1 was an introduction to the subject and looked at preservation letters. Part 2 considered preserving physical and witness statements. Part 3 reviewed all the many motor carrier records that must be maintained. And this finale, Part 4, discusses the various types of electronic data that may be available for retention after an accident.
Black Box Features and Information
An increasing percentage of both personal and commercial vehicles on the roadway record and store downloadable data. Some vehicles contain multiple data recorders. Depending on the system, the available data may be limited to such primitive information as whether or not the airbag deployed. In the case of more advanced systems (i.e., VORAD), the recorded data reflects not only information about the vehicle in which it is installed, but also radar records of the vehicle’s surroundings.
A person with the appropriate equipment can download the data and gain a more complete perspective of what happened prior to and at the time of the collision. In many electronic control modules installed on commercial vehicles, when an occurrence triggers the module, it will record and retain information for sixty (60) seconds prior to and after the triggering occurrence.
Vehicles that have electronic control modules or other “black box” recorders should either have the module removed or downloaded prior to the vehicle being put back into service. There are very specific, individualized protocols that should be followed in downloading the data from these records.
Cell Phone Records
Cell phone records can be an integral part of any case involving a motor vehicle accident. In some instances, records of phone calls, text messages, and data usage can give clear indications of a driver’s behavior before, during, and after an accident. However, some information is only available for a limited period of time. For example, most cellular service providers only maintain the contents of text messages for a period of 30-90 days, after which the provider will only have records of to or from whom messages were sent/received and at what time. Data usage records can be limited in that most current phones are capable of passively uploading and downloading data without any input from the user; thus, a showing of data transfer at a particular moment does not indicate that a person was actively operating his phone at a given moment.
Another important aspect of available cell phone data is the GPS information that may be obtainable. Many personal vehicles have also begun to record downloadable GPS data. And commercial vehicles may have GPS data that can be obtained via on-board electronic communication devices, like Qualcomm. Over short distances traveled, GPS may be of limited utility based on the locations of the towers that the GPS are “pinging”, but for longer distances, GPS information can allow for a determination not only of direction of travel but also time-distance and speed calculations. GPS can further be used to corroborate a driver’s logsheets, bills of lading, fuel receipts, and other documents that reflect the driver’s location at a given time.
Many commercial vehicles are being equipped with on-board video recorders (i.e., DriveCam), which function similarly to electronic control modules, in that pre-programmed occurrences will trigger the video recorder to retain footage. Typically video recorders are installed inside the cab pointing outward, although some recorders also have cameras that record the interior of the cab. Typically, the motor carrier does not own the data that is recorded, and it must be obtained from a third party that maintains the recordings. Of all the recent technological innovations for motor vehicles, none has a greater potential to establish or alleviate potential liability as on-board video recorders, particularly in cases that would otherwise be he-said-she-said affairs.
Concluding the Series
A quick response to a motor vehicle accident can make all the difference in preserving and obtaining evidence that may otherwise be lost. Tire marks and debris will be gone within a matter of hours or days. Data stored in vehicles and on-board electronic devices can be overwritten if a vehicle is started without the data having first been downloaded. Witnesses can change addresses and phone numbers without notice. A party’s recollection of an accident changes and falters with each passing day. Documents may only be retained for a matter of months. Whereas a prompt response to a motor vehicle accident and immediate efforts to collect and retain information may allow the parties to effectively determine liability and evaluate claims.