Truck Crash: Post Crash Document Preservation – Scott L. Turner

Truck Crash: Post Crash Document Preservation – Scott L. Turner

As a snapshot of document preservation; the following is intended to provide a quick reference guide as to the same.

Each 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: 100 air-mile radius, Intrastate v. Interstate, HM on board, etc. 

The above stated; there are some constants in every CMV crash that must always be sought out.

It is logically known in the Motor Carrier legal community that the documentation of a driver, driver’s activities and driver’s ability to adhere to company policy, and federal regulations is critical in adjudicating a CMV crash; further, it is essential to the point of either adding a zero, or taking a couple off 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), document preservation is clearly a benefit, and 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, still operating like it was 1985, the document preservation surrendered during discovery may prove to be painful, and may eventually render the Motor Carrier uninsurable and/or causing of interventions by the FMCSA.. 

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

In general, immediately a law firm should look to preserve the following documents, but not limited to:

• 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 (supporting RODS)
• 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 some of the aforesaid; examples: 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 and/or motor carriers negligence or exonerating them 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 the crash.

Fuel receipts that are offered up as supporting documentation, and that 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 which 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 nearly 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.

© Copyright 2012-2014

Scott L. Turner

SLTurner@SLTurnerConsulting.com