Truck Crash: Post-Crash Document Preservation

TASA ID: 3086

Truck Crash: Post-Crash Document Preservation

As a snapshot of document preservation, the following is intended to provide a quick reference for attorneys. Each Commercial Motor Vehicle (CMV) crash and the circumstances involving the crash vary, often substantially; therefore, each case needs to be independently investigated and thoroughly understood. In addition, Motor Carriers applicability varies somewhat as well such as, but not limited to, a 100 air-mile radius, Intrastate v. Interstate, HM on board, etc. 

Despite variations, there are some constants in every CMV crash that must always be sought out.

Commonly known in the Motor Carrier legal community is that the documentation of a driver, a driver's activities, and driver's ability to adhere to company policy, and federal regulations is critical in adjudicating a CMV crash. Furthermore, it is essential to the point of either adding a zero, or taking a couple off of a settlement, or jury's decision; worse yet, the difference between criminal conviction or being exonerated.

Post crash document preservation is critical from both a defense standpoint and a plaintiff standpoint. If a Motor Carrier operated within the confines of the regulations, FMCSA and PHMSA (where applicable) shows that document preservation is clearly a benefit. Every effort should be made to preserve the same to protect both the company and the driver.

If a Motor Carrier performs its business as an "old-school" mentality shop, the document preservation surrendered during discovery may prove to be painful, and may eventually render the Motor Carrier uninsurable. 

If plaintiff counsel intends to prove proximate cause of negligence to the motor carrier, they should act quickly upon retention, as there are certain critical documents that have a '"shelf life." If these certain documents are not requested to be preserved, they may very well be destroyed, and this may be critical evidence. 

In general, a law firm should immediately look to preserve the following documents.

• Driver Vehicle Inspection Report (DVIR)
• Records of Duty Status (RODS) or (HOS, Hours-of-Service)
• Electronic On-Board Recordings (EOBR)
• Driver time sheets (if applicable)
• Receipts: tolls, fuel, service receipts, food
• Bills of lading, shipping documents
• EZ Pass; or other electronic toll paying devices
• PrePass
• Scale tickets
• Electronic Control Module (ECM) data
• Global Positioning data (GPS)
• Cell phone records

There are many other items that will need to be produced during the discovery phase of a court case. However, these additional documents do not have the time sensitivity as those listed; examples are medical, training, company policy, Q-files, etc.

The two documents that will often prove to be the most effective, in either prosecuting a driver's negligence or exonerating him/her from any wrong-doing, are the Records of Duty Status (logbooks) and the DVIR's, both of which are permitted to be destroyed within scheduled time frames as prescribed by the FMCSA; respectively they are six months and three months.

In addition to the above scheduled destruction time frames, all supporting documents to the RODS must be retained for the same period of six months. 

Once defense counsel receives a demand letter of preservation of such documents, and destruction occurs after the date of the letter, the same may be considered spoliation of evidence. If the time sensitive evidence of RODS and DVIR's are "not available," it may be assumed to be a violation of the FMCSA specific regulation. If such documents are not available, often there are other ways to determine fatigue driving that may have been a causation factor to a crash.

Fuel receipts that are offered up as supporting documentation and are issued from many of the large nationwide fuel vendors such as T/A, Pilot and Love's, often will not display the time as to when an operator fueled; only the date will appear.

At the end of the day, every successful CMV crash case that is either civilly or criminally prosecuted or successfully defended is always built on the foundation of documentation the Motor Carrier has in their possession, and a keen eye to examine the same. Therefore, expedient preservation of these documents is critical to a successful conclusion.