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April 27, 2015

The last two decades have witnessed an explosion of sophisticated technology employed by the interstate motor carrier industry to leverage capacity and maximize profits. GPS data, electronic on-board recorders (“EOBR’s”), direct e-mail links, scanners, paperless log systems and live camera feeds from the driver dashboard are some of the things being used. All provide the motor carrier with precision data on driver performance, vehicle maintenance and diagnostics, as well as data on driver hours of service compliance mandated under the Code of Federal Regulations, 49 C.F.R. § 395. These technologies are in a constant state of flux, yet their impact on a jury is undeniable. Of particular interest, at least in defending motor carriers and their drivers in catastrophic bodily injury claims, are the myriad GPS, satellite and computer technologies encapsulating evidence regarding vehicle operation, speed and driver performance in the immediate “pre-collision” time-frame. By now, most all know this data is normally temporarily stored in EOBR’s or with other third party vendors. Most importantly, updated and technologically accurate data usually provides a wealth of evidence that may exonerate the driver from fault. Capturing this evidence in the immediate aftermath of a collision can help make the motor carrier’s case.

Conversely, losing electronic data will often lead to a damaging spoliation of evidence claim or jury instruction, allowing the jury to punish the motor carrier for not preserving electronic data presumed to favor the Plaintiff’s case. See Martino v. Walmart Stores Inc., 908 So. 2d 342 (Fla. 2005). The risk of losing electronic data is even more acute given the wealth of recent FMCSA and FHWA Regulations requiring minimum retention periods for (among other things) electronic or manual driver logs, maintenance records and pre and post trip inspections. See, e.g., 49 C.F.R. § 395.8, 395.15. Knowing what technologies your motor carrier client has installed on its vehicles, what data is retained under that technology, for how long, and the motor carrier’s business custom and practice on data retention, are all pre-requisites for counsel representing truckers in catastrophic accident litigation -- this much is obvious.

However, and as a logical extension of issues encompassed by spoliation of new electronic data, a looming issue is whether a spoliation of evidence claim is proper where the trucking company and/or its driver fail to create a record (electronic or otherwise) that is otherwise statutorily mandated. In other words, what if the tractor-trailer EOBR is not properly installed, not engaged on purchase, malfunctions due to wear and tear, and/or does not create electronic data to “discard or spoliate”? Likewise, what if the driver fails to generate electronic hours of service logs and report to his employer accordingly for purposes of compliance with duty status hours? A fairly recent Federal District Court Decision provides favorable guidance.

In Dixon v. Greyhound Lines, Inc., 2014 WL 6087226 (M.D. La., Nov. 13, 2014), the Plaintiff claimed he sustained injuries from a tire blowout that occurred while he was on a Greyhound Bus. Whether the Plaintiff reported injuries to the Greyhound driver was a contested fact issue. The Greyhound driver claimed no injury was reported at the scene, and therefore no Greyhound “C-4 Incident Reporting Form” was generated in the first instance. The driver generated several “post trip vehicle inspection records” per FMCSA Regulation 49 C.F.R. § 396.11. However, those inspection records were discarded within three months of the incident under Greyhound’s records retention policy, which policy comported with the Code of Federal Regulations. After filing suit, and discovering Greyhound had created no C-4 Incident Report, the Plaintiff brought a Motion for Spoliation and for Sanctions, arguing Greyhound “intentionally destroyed evidence by not creating a report it should have generated.” The spoliation remedy sought from the District Court for failing to generate an accident report record was “…to strike Greyhound’s defenses and impose a final judgment that included punitive damages.”

The Dixon court initially engaged in a typical “spoliation of evidence” analysis by addressing the threshold issues of “duty to preserve, relevancy of the lost or destroyed evidence, and whether the Defendant acted in bad faith in not creating records it should have created.” According to Dixon, the threshold problem (for the Plaintiff) was a typical spoliation analysis “does not fit” where a party fails to generate the “spoliated” evidence. Concluding there was no duty to preserve that which did not exist, the Dixon court summarily rejected the Plaintiff’s spoliation arguments and denied the Motion for Sanctions. On Greyhound’s specific failure to generate a document/the C-4 form, the District Court ruled: “…Defendant had no duty to preserve any C–4 incident form relevant to Plaintiff’s alleged injury, where no C–4 form was actually created. In other words, Defendant could not have a duty to preserve something that does not exist.” Id. (emphasis added). As of the date of this article, it does not appear that this ruling has been appealed to the Fifth Circuit.

“Takeaways” and Precautions Based on the Dixon Ruling:

Where the Plaintiff argues the motor carrier failed to generate GPS, computer or any electronic data, the Dixon decision appears to be the most recent published Federal decision (in a CMV context) holding there is no duty to preserve evidence/records that do not exist;

However, it should be cautioned that, given the Code of Federal Regulations requirements mandating the creation and preservation of certain records for minimal periods of time (i.e. driver logs for at least 6 months under Section 395), and public safety implications underlying those requirements, other courts may see things differently from Dixon, especially at the State Court level, where Judges may apply their own standards of fairness regarding proper spoliation remedies for not generating data otherwise mandated;

We thus suggest that Dixon will likely not protect a carrier from a failure to generate data whose creation and retention is mandated by carrier guidelines and/or under the Code of Federal Regulations; and

That aside, generally speaking we believe best litigation practices are to avoid being in the risky position of defending a spoliation claim in the first instance. To avoid this, motor carriers and their counsel should understand the parameters and limitations of all on board technology ahead of time, and before an accident occurs. It may even be advisable to employ a competent expert who is on-call and knows these waters well.

The KD Transportation, Trucking, Transportation and Logistics Group advises our motor carrier, broker and freight forwarder clients in all manner of spoliation of evidence and other data retention and regulatory issues impacting the same. If you have any questions, or require our legal counsel on any issues relating to the Trucking, Transportation or Logistics Industries, please contact Scott McMahon,, (813) 314-1129.



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