Surviving the Storm of Electronic Evidence by fionan


									 Surviving the Storm of
  Electronic Evidence
 Dealing with the Impact of CSA
2010 and Other Electronic Data in
       Trucking Litigation

         Ryan T. Hand, Esq.
      Lorance & Thompson, P.C.
           Houston, Texas
Watch out for the hammer;
we are the nails!!!
5,000 fatalities a year
because of big bad trucks!!!
Hiring Conundrum

Screening and qualifying new driver
  applicants, FMCSA Pre-Employment
  Screening Program (PSP).

To enroll, or not enroll, that is the
FMCSA Pre-Employment
Screening Program (PSP)
   New FMCSA program mandated by Congress to
    assist the motor carrier industry in assessing
    individual driver’s crash and serious safety violation
    history as a pre-employment condition.
   Voluntary program, not a part of CSA 2010
    (so they say), that contains Driver Information
    Resource records (DIR) on individual drivers.
   Request through NIC Technologies
   Data from Motor Carrier Management Information
    System (MCMIS)
DIR report
   Must have driver authorization
   Can only be obtained for pre-employment screening
   Contains 5 yrs. of crash data and 3 yrs. of roadside inspection
    data from the FMCSA.
   FMCSA says “the raw data that will be available to
    carriers and drivers in the PSP is the same data that is
    used in the Driver Safety Measurement System
    (DSMS) but it does not provide a score or assessment
    from the FMCSA.”
   Cost:
    1. Carriers with less than 100 power units: $25 annual fee
    plus $10 fee per record;
    2. Carriers with more than 100 power units: $100 annual fee
    plus $10 fee per record.
CSA 2010 Driver Safety
Measurement System
   FMCSA says “tool that enables enforcement
    personnel to assess individual drivers in the
    Behavior Analysis and Safety Improvement
    Categories (BASICs).”
   Law enforcement will use this tool to examine
    safety performance of drivers when conducting CSA
    2010 carrier investigations.
   FMCSA says not available to carriers, drivers or the
   But, the raw data will be available through
   Will not assign a safety rating or Safety Fitness
    Determination (SFD), AT THIS TIME. STAY
FMCSR require each motor carrier to make the
   following investigation within 30 days of hire.
   FMCSR 391.23
1. 3 years of driving record from State where driver
   held a driver’s license; and
2. 3 years employment record.
3. Carriers typically obtain MVRs and reports from
   services such as DAC and USIS.
4. Should you add PSP to the list, although not
   specifically required by the regs.?
5. What additional information would you obtain
   from the PSP?
Available Driver Specific
Data from CSA 2010 DSMS
Seven Behavior Analysis and Safety
   Improvement Categories (BASICs)
1. Unsafe Driving BASIC

   Operation of CMVs in a dangerous or
   careless manner (speeding, reckless
   driving, improper lane change and

2.   Fatigued Driving BASIC
     Operation of CMVs by drivers who
     are ill, fatigued or in non-compliance
     with hours-of-service regulations (log
     violations, illness or fatigue).

3.   Driver Fitness BASIC
     Operation of CMVs by drivers who
     are unfit to operate a CMV due to
     lack of training, experience or
     medical qualifications (failure to have
     a valid CDL and being medically

4.   Controlled Substances and
     Alcohol BASIC
     Operation of CMVs by drivers who
     are impaired due to alcohol, illegal
     drugs and misuse of prescription or
     over-the-counter medications.

5.   Vehicle Maintenance BASIC
     CMV failure due to improper or
     inadequate maintenance (brakes,
     lights, and other mechanical defects,
     and failure to make required repairs).

6.   Improper Loading/Cargo
     Securement BASIC
     CMV incident resulting from shifting
     loads, spilled or dropped cargo, and
     unsafe handling of hazardous
     materials (improper load securement,
     cargo retention, and hazardous
     material handling).

7.   Crash Indicator BASIC
     Histories or patterns of high crash
     involvement frequency and severity
     based on information from state-
     reported crash reports.
Reasonably prudent
trucking company
   Following the regs. not necessarily enough
   Stallings v. Werner Enterprises, 598 F.
    Supp.2d 1203 (D. Kan. 2009).
   Found: Even if Werner’s investigation and
    hiring did not violate the FMCSR, a jury
    could find that Werner breached its common
    law duty to use reasonable care in hiring the
   Regs. generally help determine the
    minimum standard of care, but juries can
    require more.
Negligent Hiring
   A trucking company has a common law duty
    to protect the public by inquiring into the
    competence and qualifications of those
    considered for employment.
   The standard is “knew or should have
    known the driver was accident prone.”
   Plaintiffs almost always add this claim in
    personal injury suits.
   Failure to enroll in PSP could impact “should
    have know” standard if you chose not to
Burke, et al. v. TransAm
Trucking, 605 F.Supp.2d 647
(M.D. PA 2009)
   The more specific the data, the more it could hurt,
    or help…
   Claim for punitive damages thrown out because
    Plaintiff did not have evidence of specific violations
    beyond FMCSA downgrading carrier from
    “satisfactory” to “conditional” rating.
   Held: Violations of the regs. are not, alone, a
    sufficient basis for punitive damages.
   Must be some nexus between the violations and the
    cause of the accident showing reckless indifference
    to the rights and welfare of others.
Prior Court Decisions on
SafeStat shed light on how CSA
2010 might be used in litigation
   Shram v. Foster, et al., 341 F.Supp.2d 536 (D.Md.
   Case against broker for negligent hiring of a motor
   Held: Duty of broker to use reasonable care in hiring
    carriers includes at least:
    1. checking SafeStat database; and,
    2. maintaining records on the carriers they use to
    assure the carriers are not manipulating their
    business practices to avoid unsatisfactory SafeStat
   CSA 2010 data could be used in similar fashion
    regarding hiring of drivers and motor carriers.
Doyle v. Watts Trucking, 2007
Neb. App. LEXIS 124 (Neb. App.
   Accident involving allegations of “sleep deprivation”
    against the truck driver and vehicle maintenance
    against the carrier.
   Court allowed into evidence various safety reports
    from the FMCSA, including SafeStat data showing
    that the carrier regularly violated HOS rules and
    violated the regs. on brakes and tire tread depth.
   Defendant objected on relevance grounds, but the
    court allowed the evidence.
   CSA 2010 data could be used in a similar manner.
Jones v. C.H. Robinson, 558
F.Supp.2d 630 (W.D. Va. 2008)
   Plaintiff injured in a trucking accident by carrier
    hired by broker, C.H. Robinson.
   Carrier had “conditional” safety rating and was
    hired by Robinson.
   Contract between carrier and Robinson required
    carrier maintain a “satisfactory” safety rating.
   Court held enough evidence for jury to decide if
    Robinson breached its duty to select a competent
   Carriers with “marginal” ratings can expect the
PSP, DIR Report: If you
don’t get it, the Plaintiff
probably will!!
   Like medical records, criminal records,
    traffic records, plaintiffs can use subpoena
    power of courts to obtain the DIR report.
   Pre-suit, plaintiffs will likely use Freedom Of
    Information Act.
   I have not seen anything to the contrary.
   Plaintiffs will get this information, despite
    the FMCSA’s statement that it is not
    available to the public and solely for pre-
    employment screening.
From a litigation standpoint,
difficult to tell a jury why
did not enroll when…
1.   Carriers say SAFETY FIRST.
2.   For $10, you see the full report (plaintiffs’
     standard argument, profits over safety…).
3.   The Gov’t says the system will “help
     employers make more informed decisions
     when hiring commercial drivers.”
4.   Much more detailed info. than MVRs and
     DAC reports.
5.   The raw data is designed to “examine the
     safety performance” of drivers.
     TO A JURY WHY!!!
Electronic Data Storm:
make or break evidence
   Emails
   Qualcomm data
   ECM data
   Electronic logs
   Computer maintenance and driver files
   Cell phone records (calls, TM and photos)
   End game, avoid a spoliation charge and
    preserve data that proves your case
What do we keep?
   Once litigation is anticipated, anything
    relevant to the litigation should be
   Rules require a party to act affirmatively in
    preventing destruction or alteration of
    potentially relevant information.
   To satisfy this duty, should suspend normal
    business practice of purging records if
    litigation reasonably anticipated.
   Develop and follow record retention policies,
    along with retention policies in the event of
    an accident.
The regs. on record
   Hours of service records: 6 months
   Maintenance records: 1 yr. (6 mons. after
   Drug and alcohol testing
        Clean test: 1 yr.
        Dirty test: 5 yrs.
   Driver qualification files: 3 yrs.
   Accident register: 1 yr. after the accident
Simply following the FMCSR
on record retention = rolling
the dice
   General rule: litigants have a duty to
    preserve documents that may be relevant to
    potential future litigation.
   Should preserve when have notice that
    evidence is relevant OR when a party should
    have known that the evidence may be
    relevant in future litigation.
   Law requires more than following the regs.
    when litigation is reasonably anticipated.
Spoliation charge
   Spoliation defined: the destruction or
    significant alteration of evidence, or
    failure to preserve property for
    another’s use as evidence in pending
    OR reasonably foreseeable litigation.
   Rebuttable adverse inference, jury
    instruction. Example, logs would have
    shown violations of HOS.
Darling et al. v. J.B. Expedited
Services et al., 2006 U.S. Dist.
LEXIS 54000 (M.D. Tenn. 2006)
 2/12/04; fatality accident
 3/4/04; Plaintiff attorney sends
  preservation letter
 Carrier saved only logs for 7 days
  before accident, but purged all other
  logs after 6 months
 Plaintiff alleged spoliation
Darling et al. v. J.B. Expedited
Services et al., 2006 U.S. Dist.
LEXIS 54000 (M.D. Tenn. 2006)
   Motor carrier argued regs. only require
    holding logs for 6 months.
   Court ruled that motor carrier had a
    duty to preserve the logs beyond the 6
    month period.
   Ordered a rebuttable, adverse
    inference jury instruction.
Montemayor v. Heartland Trans.,
2008 U.S. Dist. LEXIS 88990
(S.D.TEX. 2008)
 5/6/06 truck accident with injuries.
 Driver logs destroyed 6 mons. after the accident as part of
   normal procedures.
 DDEC data not kept for the accident, and truck sold before
   the suit.
 Safety director testified she did not anticipate litigation until
   notice of suit.
 Suit was filed 17 months after accident.
 Trucking company interrogatory answers said litigation
   anticipated day after accident.
 Company policy was to retain logs longer than 6 mons. if
   accident with bodily injury, a tow, a citation to the truck driver
   or if told to so.
Montemayor v. Heartland Trans.,
2008 U.S. Dist. LEXIS 88990
(S.D.TEX. 2008)
Court held:
 Since safety director’s testimony suggests
  possibility policies not followed when logs
  destroyed, spoliation charged survived.
 Because carrier’s policy for preserving
  DDEC data not clear, and data from the truck
  regarding other dates was kept before the unit was
  sold, the spoliation charge survived.
 Catch 22: Decision on when to “anticipate
  litigation” to protect investiation or risk charge of
Frey v. Gainey Transp., 2006 U.S.
Dist. LEXIS 59316 (N.D. Ga. 2006)
 11/10/03 truck accident with injuries.
 Plaintiff attorney sends safety director a
  preservation letter 10 days later.
 Qualcomm records not preserved; safety
  dir. testified that incident not serious
  enough judging from Plaintiff’s conduct after
  the accident to preserve the Qualcomm
Frey v. Gainey Transp., 2006 U.S.
Dist. LEXIS 59316 (N.D. Ga. 2006)

   Court found Qualcomm data irrelevant to the claims
    asserted (negligent supervision, unsafe practices).
   90 days after the accident, the data was
    automatically deleted in the normal course of
   Safety director NOT direct the data to be destroyed.
   Court noted the prudent course of action would
    have been to preserve the data, but balanced the
    low level of prejudiced with the conduct.
   Close call. If a stronger nexus, then a spoliation
    charge likely granted.
MasterCard v. Moulton, 2004 U.S.
Dist. LEXIS 11376 (S.D.N.Y. 2004)
   Intellectual property dispute in which Plaintiff sued
    over pornographic website that used MasterCard’s
    “Priceless” trademark.
   Plaintiff sought all emails received by defendant
    concerning the website.
   Defendant failed to maintain emails after suit was
   Court held defendant “plainly had an obligation to
    preserve the emails in question, since they were
    relevant to the pending litigation and had been
   Spoliation jury instruction granted.
Bloughed Up!!!
Handling Electronic Data
   Emails, Qualcomm and text messages: do
    not say it unless you would show a jury.
   Have a record retention policy and follow it.
   Go beyond regs. for record retention if you
    anticipate litigation.
   Download ECMs early.
   When receive a preservation letter from a
    Plaintiff attorney, you are on notice. Save
    your files.
Simple legal advise to
prepare for CSA 2010
Sample scenario: what
do you preserve?
   Rear end accident at around 20 mph.
   Minor damage to front of truck, and moderate damage to rear
    of other vehicle. Both are driven from scene.
   Truck driver cited for “failure to control speed.”
   Occupants in other vehicle drive away in their car, but
    complain of neck and back pain before leaving.
   No emergency care at the scene of the accident.
   No preservation letter from an attorney.
   Not find out about case until 16 mons. later when suit is filed.
   The passenger had a neck and back surgery, and has incurred
    near $200k in medical expenses.
   Are you prepared for this case? Logs, Qualcomm, ECM data
    and maintenance file.

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