Say Hello to "spoliation."
Spoliation is a legal term related to a failure to preserve and produce evidence in a trial. Spoliation rules differ in Canada vs the US on a fundamental element: in Canada, the spoliation must be intentional. In the US that doesn’t apply, and there-in lies the pitfall for many. Should a court rule that a party failed to preserve documents or other evidence which could have been relevant to the case, the party who failed to maintain that evidence will be found to have prejudiced the case, and the courts will rule they did so because presenting the evidence would have hurt their case, and helped the other party’s case. The courts can then provide direction to the jury to assume that the missing evidence would have been adverse to the party failing to preserve and produce it. Other sanctions may extend to barring the offending party from introducing its own evidence even if such evidence supports a defense argument.
The duty to preserve and produce evidence does not require that litigation be already started, and, again as mentioned, in the US, sanctions do not require proof of a specific intent to destroy evidence. In most jurisdictions it is enough that the party knew or should have known that litigation was possible and thereafter failed, for whatever reason, to take affirmative steps to identify and preserve potentially relevant evidence.
A letter from a plaintiff’s attorney investigating a claim or merely announcing retention would likely give rise to the duty to preserve evidence. Even without the explicit or implicit threat of litigation, the duty may arise from the simple knowledge of the accident’s seriousness. Destruction or purging of records or data as part of a bona fide internal retention schedule is probably not going to be a defense. These are times and events typically predating the involvement of any attorney on your behalf, meaning that the responsibility for determining whether there is a need to start identifying and preserving possibly relevant evidence falls to you.
The "spoliation" concept is not new. In one form or another, it has been around at least as long as lawyers, paper records and fireplaces. But technological advancements have served both to expand the categories of materials coming within the rule’s requirements, as well as to increase the variety of ways in which even the most careful of managers can inadvertently trip over those requirements.
In the not so distant past, materials or data that a motor carrier may have possessed relating to an accident would have been limited to the standard items created and retained in response to the DOT regulations. Records of Duty Status, such as driver logs and supporting trip tickets, toll and fuel receipts, as well as driver qualification and equipment maintenance records, would have been pretty much it.
Technology has changed this, however. In addition to traditional RODS, almost all carriers now produce, receive or have control over a flood of data in electronic format: computer data files, emails, data from satellite tracking systems, cellular system records, etc. And, today’s vehicles generate a wealth of data, all of which may arguably contain evidence of discrete events at the time of an accident, including data from onboard electronic control modules, trip readers, weigh-in-motion systems, and collision avoidance and warning systems.
It is, therefore, essential for carrier management to create and implement a reliable plan of evidence preservation, triggered before litigation ever begins, and reflecting both the reality of the spoliation rule’s reach and the increased complexities of today’s data generation and retention systems.
Recognize that as a trucking company, you are a target for those seeking to profit from an event, regardless of the severity. There is an entire industry dedicated to suing transportation firms for insurance limits, and beyond. If you have an accident in the US with another vehicle, it is advisable to speak with a lawyer as soon as you have been able to determine the facts of the accident. Consider enrolling in TIDA if you have significant operations in the US – it will likely help your insurance rating
Below are some guidelines on how to implement a spoliation protection policy
Risk / Safety Manager
Repairs to Vehicles, disposal of Evidence.
There will come a time when we need to move forward and get on with business. To protect ourselves we need to follow the steps outlined below prior to any actions that might be considered spoliation.
1 – Establish jurisdiction where accident occurred: ____________
2 – Establish Statue of Limitations:________________
3 – Notify other party of intent to dispose of evidence/effect repairs a minimum of 2 times (if the first notification is not responded to). At least one notification should be by registered letter or another method that provides verification of receipt.
For more on this, including a sample Spoliation Letter to send the other party, and a comprehensive checklist to help protect your company, send me an email: firstname.lastname@example.org