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 is an introduction to the subject and looks at preservation request letters. Part 2 considers preserving physical and witness statements. Part 3 reviews all the many motor carrier records that must be maintained. Part 4 discusses the various types of electronic data that may be available for retention after an accident.
A Rapid Response to a Motor Vehicle Accident is Important
A prompt response to a motor vehicle accident and immediately beginning to collect and retain information can make all the difference in litigation that arises out of a motor vehicle accident. A well-documented accident scene and the preservation of data from the involved vehicles may allow the insurance companies and/or attorneys who represent the involved parties to effectively determine liability and evaluate bodily injury claims, which can lead to a quick resolution. A lack of information can result in years of unnecessary litigation. Both sides are best served by having information at their disposal. Regardless of whether facts are favorable or not, it is better to know them up front.
Many motor carriers have a plan for what it and its driver should do immediately following a motor vehicle accident. Perhaps the driver is to notify dispatch and cooperate with any investigating officers on the scene. The driver may be under instructions to photograph the vehicles and/or scene. Such accidents will trigger the motor carrier to contact its insurance provider, which may, depending on the severity of the accident, send an accident reconstruction expert to the scene.
On the other hand, when motor carriers and individuals who have been involved in accidents do not promptly respond and begin to preserve information, trouble may abound. The majority of states have statutes of limitations of either two or three years for personal injury claims. This timeframe can be problematic for motor carriers because that two-to-three year window is a larger period of time than motor carriers are required to maintain the majority of their documents. For example, the Federal Motor Carrier Safety Regulations (“FMCSR”) require motor carriers to maintain a record of duty status (which may be either log sheets or timesheets) for drivers for six months. Motor carriers must retain annual inspection records for commercial vehicles for fourteen months from the date of the report. Roadside inspection reports must be retained for only twelve months. The FMCSR require certain documents in a driver’s qualification file to be maintained for a maximum of three years, including records of traffic citations and medical examiner’s certificates. Motor carriers often dispose of documents, which may be in paper form or on hard drive, at the earliest opportunity.
The following series is a guide to documenting an accident scene and preserving the documents and data that can be essential in handling a case following a motor vehicle accident.
Spoliation Issues and Preservation Letters
When claimants engage counsel shortly after a motor vehicle accident, they are best served by counsel sending out a preservation letter, wherein claimants’ counsel requests that the motor carrier to preserve certain documents and data. For those claimants and counsel who wait until they are right up against the statute of limitations before making document and data preservation requests, they often request pertinent information that has been rightfully disposed of.
By that time, the motor carrier may have systematically discarded the driver’s log sheets, pre-trip inspection reports, bills of lading, weigh tickets, etc., for the days surrounding the accident. No one would be at fault for disposing of the records, so long as the documents were maintained for the period required by the FMCSR, but the attorneys for both the claimants and motor carrier may be left with gaps in information that could otherwise help litigate their cases.
If a preservation letter is sent and counsel can later prove that data or documents were destroyed after notice of representation and a request for preservation, the requesting party may be able to invoke a spoliation charge to use the destruction of data and/or documents against the destroying party. A preservation letter may be a generic request for preservation or inspection (below):
Or it could be a detailed request for video/audio recordings, ECM/black box data, inspections of tires and brakes, etc. Regardless of the nature of the requests, the vehicle should be preserved until the insurance carriers and/or attorneys can arrange for the inspection to be conducted.
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 49 CFR § 395.8(k).
 49 CFR § 396.17.
 49 CFR § 396.9.
 49 CFR § 391.51(d).
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