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43 Brief 62 (2013-2014)
Evidentiary Issues in Trucking Cases

handle is hein.journals/tbrief43 and id is 268 raw text is: PRACTICE TIP

Evidentiary Issues
in Trucking Cases
By Anthony J. Novak
According to the Federal Motor Carrier Safety
Administration (FMCSA), in 2011 there were
273,000 police-reported crashes involving large
trucks.' Of these crashes, 3,341 (1 percent) resulted in
at least one fatality, and 60,000 (22 percent) resulted
in at least one nonfatal injury. Like any other types
of accident, more trucking crashes create more truck-
ing litigation. There are, however, certain evidentiary
issues unique to trucking cases that attorneys should
keep in mind from the outset. This article focuses on
four issues of significant importance: spoliation of evi-
dence, event data recording, admissibility of driving
history, and FMCSA safety rating systems.
Spoliation is the intentional or unintentional failure
to preserve evidence that is relevant to a legal pro-
ceeding. As a defense lawyer in a trucking accident,
opposing counsel will often attribute the destruction or
manipulation of evidence to your client, so it is impor-
tant for industry members to understand the rules
and repercussions surrounding spoliation of evidence.

The laws and applicable standards vary among the
states. In states like Mississippi, if evidence is missing,
a driver must prove the evidence is absent for a justi-
fied reason (e.g., natural disaster).' If the facts show the
evidence was deliberately or negligently destroyed, the
court will instruct the jury to assume or infer the miss-
ing evidence is unfavorable to the driver. Along with
this negative presumption, the court may impose disci-
plinary or discovery sanctions, criminal penalties, and
contempt of court.'
This scenario occurred recently in Texas. After an
unrelated accident, the plaintiff exited his car and was
on the roadway when the defendant's truck struck and
killed the plaintiff.' The truck then continued driving
approximately 1,400 miles to a different state, where
the driver replaced the truck's two front tires-the car-
rier authorized and paid for the replacement. After the
original tires were removed, they were lost.6 Finally,
the driver abandoned the truck in a parking lot in
California. The carrier retrieved the truck and took
it to one of its yards, where it sat outdoors for three
months. During that time, the carrier's lawyer and
investigator allegedly inspected the truck and removed
substances from its body.' The Texas district court
held that spoliation had occurred and struck down all
of the defendants' pleadings and defenses in regard to
Plaintiffs often send letters to defense attorneys in
an effort to record their attempts to preclude any acts
of spoliation. In these letters, the plaintiff asks the
defendant to maintain evidence relevant to a con-
templated case. However, these letters often make
the mistake of asking the defendant to maintain an
unnecessary or cumbersome amount of documents.
These unnecessary requests often contain categories
of information that in no way affect the litigation or
underlying issues. Defense attorneys should compare
the request to their client's company policy for reten-
tion of documents and FMCSA regulations and ensure
all documents required to be retained by the policy
and regulations are retained. Lastly, the defense should
respond to this letter with its own letter, request-
ing that the plaintiff maintain certain documentation
and inform the opposing party when repairs need to
be made to the plaintiff's vehicle, and expressing the
client's refusal to comply with any cumbersome and
unnecessary portions of the plaintiffs requests. This
response letter could preserve relevant evidence and
show the opposing party's request was immediately
believed to be overly burdensome.
Regardless of the posturing, both defense and plain-
tiffs attorneys should take all necessary steps to avoid
spoliation of evidence, as it could have an adverse
effect on both parties.


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