VIEWS: 12 PAGES: 40 POSTED ON: 7/17/2010
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 question…. 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 (DSMS) 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 public. But, the raw data will be available through PSP!!! Will not assign a safety rating or Safety Fitness Determination (SFD), AT THIS TIME. STAY TUNED!!! PSP: TO ENROLL, OR NOT TO ENROLL, IT IS VOLUNTARY 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 inattention). BASIC 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). BASIC 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 unqualified). BASIC 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. BASIC 5. Vehicle Maintenance BASIC CMV failure due to improper or inadequate maintenance (brakes, lights, and other mechanical defects, and failure to make required repairs). BASIC 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). BASIC 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 driver. 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 enroll. 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. 2004) Case against broker for negligent hiring of a motor carrier. 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 ratings. 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. 2007) 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 carrier. Carriers with “marginal” ratings can expect the same. 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. IF YOU CHOOSE NOT TO ENROLL IN PSP, BE PREPARED TO EXPLAIN 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 preserved. 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 retention Hours of service records: 6 months Maintenance records: 1 yr. (6 mons. after sell) 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) Facts: 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) Facts: 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 spoliation. Frey v. Gainey Transp., 2006 U.S. Dist. LEXIS 59316 (N.D. Ga. 2006) Facts: 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 data. 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 business. 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 filed. Court held defendant “plainly had an obligation to preserve the emails in question, since they were relevant to the pending litigation and had been requested.” 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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