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Spoliation – Don’t Lose Before the Litigation Starts

February 7, 2006

Neill T. Riddell

Article Originally Published: February 2006

The information contained in this article is not intended to be legal advice. Readers should not act or rely on this information without consulting an attorney.

As a person managing a trucking operation, your role in truck accident or personal injury claims is limited, isn’t it? You didn’t drive the truck. That was your driver’s job. And you don’t handle the litigation, that is your lawyer’s job.

So, if something goes wrong, no one can say it is your fault, right?

Well, maybe not.

There is a period between the time the truck hits the fender and the summons hits your desk when what you do (or fail to do) can significantly affect litigation results. That does not mean there is something you can do to turn bad facts into good. But, through the magic of lawyers’ arguments, good facts can become suddenly bad based entirely on things you did or did not do before litigation even starts.

Say hello to “spoliation.”

Spoliation is the term lawyers use to describe a party’s failure to preserve and produce evidence. In almost all jurisdictions, if a court decides a party failed to preserve documents or things which could have been relevant to the resolution of disputed facts, sanctions can be imposed. The least of these is allowing the jury to assume that the missing evidence would have been adverse to the party failing to preserve and produce it. Other sanctions are even more injurious, including barring the offending party from introducing its own evidence on involved issues, or even barring certain of that party’s claims and defenses.

The duty to preserve and produce evidence does not require that litigation be already started, and sanctions do not require proof of a specific intent to destroy evidence. In most jurisdictions, including Michigan, it is enough that the party knew or should have known that litigation was possible and thereafter failed, for whatever reason, to take affirmative steps to identify and preserve potentially relevant evidence.

A letter from a plaintiff’s attorney investigating a claim or merely announcing retention would likely give rise to the duty to preserve evidence. Even without explicit or implicit threat of litigation, the duty may arise from simple knowledge of the accident’s seriousness. Destruction or purging of records or data as part of a bona fide internal retention schedule is probably not going to be a defense. These are times and events typically predating involvement of any attorney on your behalf, meaning that the responsibility for determining whether there is a need to start identifying and preserving possibly relevant evidence falls to you.

The “spoliation” concept is not new. In one form or another it has been around at least as long as paper records and fireplaces. But technological advancements have served both to expand the categories of materials coming within the rule’s requirements, as well as to increase the variety of ways which even the most careful of managers can inadvertently trip over those requirements.

In the not so distant past, materials or data that a motor carrier may have possessed relating to an accident would have been limited to the standard items created and retained in response to the DOT regulations. Records of Duty Status, such as driver logs and supporting trip tickets, toll and fuel receipts, as well as driver qualification and equipment maintenance records, would have been pretty much it.

Technology has changed this, however. In addition to traditional RODS, almost all carriers now produce, receive or have control over a flood of data in electronic format: computer data files, emails, data from satellite tracking systems, cellular system records, etc. And, today’s vehicles generate a wealth of data, all of which may arguably contain evidence of discrete events at the time of an accident, including data from onboard electronic control modules, trip readers, weigh-in-motion systems, and collision avoidance and warning systems.

It is, therefore, essential for carrier management to create and implement a reliable plan of evidence preservation, triggered before litigation ever begins, and reflecting both the reality of the spoliation rule’s reach and the increased complexities of today’s data generation and retention systems.