Preserving Evidence in Trucking Injury Cases: Motor Carrier

Presenting a live 90-minute webinar with interactive Q&A
Preserving Evidence in Trucking
Injury Cases: Motor Carrier Certificates,
Engine Control Module Data and More
Crafting Spoliation Letters, Securing Key Documentation, and Challenging Evidence Destruction
THURSDAY, SEPTEMBER 10, 2015
1pm Eastern
|
12pm Central | 11am Mountain
|
10am Pacific
Today’s faculty features:
Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates, Toledo, Ohio
Eric J. D. Rogers, Attorney, Fried Rogers Goldberg, Atlanta
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Federal Motor Carrier Safety Regulations
Document Retention Timelines
Department of Transportation
Multiple Defendants
Technology and Government Databases
Third Party Vendors
5
• Regulations that pertain to all Interstate
motor carriers operating in the USA
• State the minimum documents that a
company must maintain in order to operate
• State the minimum time specific documents
must be kept
• SIZE DOESN’T MATTER!
6
• Logs, daily inspection sheets: 6 Months
• Maintenance records: 1 year
• Driver Qualification File: 3 years after last
date of employment
• Qualcomm, GPS, ECM: None
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Driver
Motor Carrier
Tractor Owner
Trailer Owner
3rd Party Maint./Repair
Yard Owner
Loader/unloader
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Broker
Shipper
Freight Forwarder
Consignee
Logistics Company
Insurer
They Can All Have Independent Liability and Evidence
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disciplinary action. The communications and data stored or transiting this system may be, for any lawful Government purpose, monitored, recorded, and subject to
audit or investigation. By using this system, you understand and consent to such terms.
**WARNING**WARNING**WARNING
WELCOME TO SAFER
The FMCSA Safety and Fitness Electronic Records (SAFER) System offers company safety data and related services to industry and the public over the Internet.
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10
Company Snapshot
The Company Snapshot is a concise electronic record of a company’s identification, size, commodity information, and safety record, including the safety rating (if
any), a roadside out-of-service inspection summary, and crash information. The Company Snapshot is available via an ad-hoc query (one carrier at a time) free of
charge.
Search Criteria
Users can search by DOT Number, MC/MX Number or Company Name.
USDOT Number
Enter Value:
MC/MX Number
Name
paschal
Search
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Federal Motor Carrier Safety Administration
1200 New Jersey Avenue SE, Washington, DC 20590 • 1-800-832-5660 • TTY: 1-800-877-8339 • Field Office Contacts
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SAFER WEB - Select Com pany
11/ 13/ 12 8:56 PM
Possible Keyword Matches
CARRIER/DBA NAME
ANDREW C PASCHALL
ANGELA VESTA PASCHAL
DARRELL M PASCHALL
DAVID WAYNE PASCHAL
GORDON AND MADELAINE PASCHAL EXPEDITED
GREGORY PASCHAL
HERBERT V PASCHAL JR
JEVON PASCHALL
JOHN PASCHAL
KARL PASCHALL
KENDRED PASCHALL FARMS
MADELAINE PASCHAL
MEREDITH PASCHAL CONCRETE INC
MICHAEL PASCHALL
MIKE PASCHAL CONCRETE INC
NORMAN W PASCHALL COMPANY INC
PASCHAL & SHAW SUPPLY INC
PASCHAL BOBBY VOYLES
PASCHAL BURIAL VAULT&CREMATION SERVICES LLC
PASCHAL ENTERPRISES LLC
PASCHAL LAWN CARE
PASCHAL MOMANYI
PASCHAL TREE SERVICE
PASCHAL WRECKER SERVICE
PASCHALL FARMS
PASCHALL FARMS LLC
PASCHALL HOME SOLUTIONS
PASCHALL SERVICES INC
PASCHALL TRUCK LINES INC
PASCHALL TRUCKING
PASCHALL TRUCKING
PASCHALL TRUCKING INC
PASCHALLS GREENHOUSE & NURSERY
ROBERT PASCHAL
ROBERT PASCHAL JR
SHANE PASCHAL WELDING
STEVE D PASCHAL
STEVEN E PASCHALL
THOMAS EDWARD PASCHAL JR
WAYNE PASCHALL
WES & LYNN PASCHALL
WILLIAM E PASCHALL
LOCATION
COTTAGE GROVE, TN
MAYODAN, NC
BURLINGTON, WI
REIDSVILLE, NC
TUCSON, AZ
ATLANTA, GA
PICKENS, SC
BOWLING GREEN, KY
ROCKMART, GA
UPTON, WY
MURRAY, KY
TUCSON, AZ
ANDERSON, IN
NEW WINDSOR, NY
ANDERSON, IN
PEACHTREE CITY, GA
JACKSONVILLE, FL
RESACA, GA
HUDSON, MI
SOUR LAKE, TX
ROCKMART, GA
ARLINGTON, TX
UNION CITY, IN
DEARING, GA
COTTAGE GROVE, TN
YPSILANTI, MI
BURLINGTON, WI
MURRAY, KY
MURRAY, KY
STAR CITY, AR
WINTER HAVEN, FL
FLORISSANT, MO
MURRAY, KY
KNOXVILLE, TN
UNION CITY, IN
SOUR LAKE, TX
CARROLLTON, GA
PURYEAR, TN
GREENSBORO, NC
STAR CITY, AR
GILLETTE, WY
WINTER HAVEN, FL
12
USDOT Number
MC/MX Number
Enter Value:
Name
Company Snapshot
PASCHALL TRUCK LINES INC
PASCHALL TRUCK LINES INC
USDOT Number: 105234
Search
ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating
Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can
be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you
can do so using FMCSA's DataQs system.
Other Information for this
Carrier
SMS Results
Licensing & Insurance
Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in
obtaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
order page or call (800)832-5660 or (703)280-4001 (Fee Required).
For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help.
The information below reflects the content of the FMCSA management information systems as of 11/12/2012.
Entity Type: Carrier
Operating Status: REGISTERED
Legal Name:
Out of Service Date:
None
PASCHALL TRUCK LINES INC
DBA Name:
Physical Address: 3443 US 641 SOUTH
MURRAY, KY 42071
Phone: (270) 753-1717
Mailing Address: PO BOX 1080
MURRAY, KY 42071-0018
USDOT Number: 105234
State Carrier ID Number:
MC or MX Number: MC-111485
DUNS Number:
Power Units: 1,157
Drivers:
MCS-150 Form Date: 09/28/2012
MCS-150 Mileage (Year):
62-975-578
1,289
123,822,787 (2011)
Operation Classification:
X
Auth. For Hire
Exempt For Hire
Private(Property)
Priv. Pass.
(Business)
Priv. Pass.(Nonbusiness)
Migrant
U.S. Mail
Fed. Gov't
State Gov't
Local Gov't
Indian Nation
Intrastate Only
Intrastate Only
(HM)
(Non-HM)
Carrier Operation:
X
Interstate
Cargo Carried:
X
General Freight
Household Goods
Metal: sheets, coils,
rolls
Motor Vehicles
Drive/Tow away
Logs, Poles, Beams,
Lumber
Building Materials
Mobile Homes
Machinery, Large
Objects
Fresh Produce
Liquids/Gases
Intermodal Cont.
Passengers
Oilfield
Equipment
Livestock
Grain, Feed, Hay
Coal/Coke
Meat
Garbage/Refuse
US Mail
Chemicals
Commodities Dry Bulk
Refrigerated Food
Beverages
Paper Products
Utilities
Agricultural/Farm
Supplies
Construction
Water Well
13
14
15
USDOT Number
MC/MX Number
Enter Value:
Name
Company Snapshot
PASCHALL TRUCK LINES INC
PASCHALL TRUCK LINES INC
USDOT Number: 105234
Search
ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating
Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can
be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you
can do so using FMCSA's DataQs system.
Other Information for this
Carrier
SMS Results
Licensing & Insurance
Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in
obtaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
order page or call (800)832-5660 or (703)280-4001 (Fee Required).
For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help.
The information below reflects the content of the FMCSA management information systems as of 11/12/2012.
Entity Type: Carrier
Operating Status: REGISTERED
Legal Name:
Out of Service Date:
None
PASCHALL TRUCK LINES INC
DBA Name:
Physical Address: 3443 US 641 SOUTH
MURRAY, KY 42071
Phone: (270) 753-1717
Mailing Address: PO BOX 1080
MURRAY, KY 42071-0018
USDOT Number: 105234
State Carrier ID Number:
MC or MX Number: MC-111485
DUNS Number:
Power Units: 1,157
Drivers:
MCS-150 Form Date: 09/28/2012
MCS-150 Mileage (Year):
62-975-578
1,289
123,822,787 (2011)
Operation Classification:
X
Auth. For Hire
Exempt For Hire
Private(Property)
Priv. Pass.
(Business)
Priv. Pass.(Nonbusiness)
Migrant
U.S. Mail
Fed. Gov't
State Gov't
Local Gov't
Indian Nation
Intrastate Only
Intrastate Only
(HM)
(Non-HM)
Carrier Operation:
X
Interstate
Cargo Carried:
X
General Freight
Household Goods
Metal: sheets, coils,
rolls
Motor Vehicles
Drive/Tow away
Logs, Poles, Beams,
Lumber
Building Materials
Mobile Homes
Machinery, Large
Objects
Fresh Produce
Liquids/Gases
Intermodal Cont.
Passengers
Oilfield
Equipment
Livestock
Grain, Feed, Hay
Coal/Coke
Meat
Garbage/Refuse
US Mail
Chemicals
Commodities Dry Bulk
Refrigerated Food
Beverages
Paper Products
Utilities
Agricultural/Farm
Supplies
Construction
Water Well
16
17
18
USDOT Number
MC/MX Number
Enter Value:
Name
Company Snapshot
PASCHALL TRUCK LINES INC
PASCHALL TRUCK LINES INC
USDOT Number: 105234
Search
ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating
Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can
be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you
can do so using FMCSA's DataQs system.
Other Information for this
Carrier
SMS Results
Licensing & Insurance
Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in
obtaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
order page or call (800)832-5660 or (703)280-4001 (Fee Required).
For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help.
The information below reflects the content of the FMCSA management information systems as of 11/12/2012.
Entity Type: Carrier
Operating Status: REGISTERED
Legal Name:
Out of Service Date:
None
PASCHALL TRUCK LINES INC
DBA Name:
Physical Address: 3443 US 641 SOUTH
MURRAY, KY 42071
Phone: (270) 753-1717
Mailing Address: PO BOX 1080
MURRAY, KY 42071-0018
USDOT Number: 105234
State Carrier ID Number:
MC or MX Number: MC-111485
DUNS Number:
Power Units: 1,157
Drivers:
MCS-150 Form Date: 09/28/2012
MCS-150 Mileage (Year):
62-975-578
1,289
123,822,787 (2011)
Operation Classification:
X
Auth. For Hire
Exempt For Hire
Private(Property)
Priv. Pass.
(Business)
Priv. Pass.(Nonbusiness)
Migrant
U.S. Mail
Fed. Gov't
State Gov't
Local Gov't
Indian Nation
Intrastate Only
Intrastate Only
(HM)
(Non-HM)
Carrier Operation:
X
Interstate
Cargo Carried:
X
General Freight
Household Goods
Metal: sheets, coils,
rolls
Motor Vehicles
Drive/Tow away
Logs, Poles, Beams,
Lumber
Building Materials
Mobile Homes
Machinery, Large
Objects
Fresh Produce
Liquids/Gases
Intermodal Cont.
Passengers
Oilfield
Equipment
Livestock
Grain, Feed, Hay
Coal/Coke
Meat
Garbage/Refuse
US Mail
Chemicals
Commodities Dry Bulk
Refrigerated Food
Beverages
Paper Products
Utilities
Agricultural/Farm
Supplies
Construction
Water Well
19
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Get Safersys and CSA data early
Broker Liability – negligent retention of motor carrier.
How does Safersys and CSA come into play?
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• Eg.: QualComm, Log Audits, GPS Tracking, Fuel
Monitoring, VORAD
• Trucking companies use outside vendors to help run
their companies
• Information created by these vendors is not always
stored on company servers
• You don’t know who the trucking company uses, but
they do.
• No requirements to maintain this information by law
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Qualcomm
Blackbox – ECM and ABS
Vorad
EOBR – Electronic logging
Onboard Video
GPS
Combined Systems
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Most large truck engines have ECM responsible for monitoring
and controlling important engine and vehicle parameters such as
speed, throttle, and braking.
Most record data for rapid deceleration
Many can record speed, clutch & brake status, & throttle position
Some record “last stop” data
Depends on the engine make, model and year.
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When in doubt, call dealer.
24
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Since 1987, the most popular engine for Class 8 trucks is
the Detroit Diesel Series 60.
Fallen off a bit since 2001, but still very popular
Most Freightliner trucks
Prior to 1998 – DDEC III – did not store any data without
add on module
Post 1998 – Data recorded
Gets better with each release
DDEC is most advanced ECM
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The last stop record - triggered when truck is stopped for
more than x length of time – factory set at 15 secs.
When triggered, will record activity from 1 minute 45
seconds before the stop through 15 sec after stop.
When the vehicle is moved again, this data is
overwritten and lost forever.

Do you want to move the vehicle after the crash?
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Hard brake report - triggered when tractor decelerates at
or above a certain preprogrammed rate.
The factory default is 7 mph/second.
Once triggered, the ECM will record activity for 1 minute
before and 15 seconds after the threshold is met.
Usually the last 2 hard brakes are recorded
Diagnostics and engine run time reports – Show serious
faults
27
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How is this useful to you?
Last Stop and Hard Brake Reports capture the following
data in 1 second intervals:
 Wheel speed (mph)
 Engine speed (rpm)
 Engine load (percent)
 Throttle position (percent)
 Brake status (on/off)
 Clutch status (on/off)
 Cruise control status (on/off)
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FRIED ROGERS GOLDBERG LLC
www.thetruckingattorneys.com
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Used in Peterbilt, Kenworth & International tractors.
Caterpillar engine ECMs have been able to record sudden
decelerations (“quick stops”) since 1995, but the factory
default is set to not record any such data.
no way to know if data is there without downloading the
box
Starting in 2007 the engines started being shipped with
“quick stop” function set to “on.”
Records 45 sec of data before trigger and 15 seconds of
data after trigger.
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The Quick Stop records:
Wheel speed (mph)
Engine load (percent)
Service brake status (on/off)
Clutch status (on/off)
Cruise control status (on/off)
Other parameters defined by end-user
Snapshot Report – critical fault – 9 seconds before and 3
seconds after – good if mechanical issue is suspected
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Used in Peterbilt, Kenworth and International tractors.
Before late 2005, little data unless optional “Road Relay”
module – Most did not have it
Now - must Cummins engines do contain EDR data as
follows in 1 second intervals:
Wheel speed (mph)
Engine speed (rpm)
Engine load (percent
Throttle position (percent)
Brake status (on/off)
Clutch status (on/off)
Cruise control status (on/off)
Lamp status (on/off)
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You need two separate software set ups to download a
Cummins engine ECM.
Insight –downloads engine settings/maintenance data
Powerspec- downloads the sudden deceleration data
panic stop report -triggered when deceleration meets or
exceeds a pre-set threshold.
The factory default is usually 9 mph/second.
Records 1 minute before and 15 seconds after trigger
Up to three panic stops can be recorded.
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Makes own engines
Since 1998 EDR called V-Mack
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Records 2 incidents
Threshold 10mph/sec decel
Late Model records one Braking and one Last Stop
Records 16 seconds before and after, usually in 0.2
second intervals. Speed is rounded to nearest mph.
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Mack incident report records:
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Wheel speed (mph)
Engine speed (rpm)
Up to 8 switches usually including
 Brake status (on/off)
 Clutch status (on/off)
 Cruise control status (on/off)
 Key switch (on/off)
Mack has not made its software publically available. To
obtain a download, the ECU must be removed and sent
to one of two authorized third parties:
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East Coast: Time Cheek, PE, www.deltavinc.com
West Coast: John Steiner, www.levaeng.com
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Makes own engines but sometimes uses Cummins
Before 2007 – no useful info
By some reports, engines built in 2007 have an incident
report capabilities similar to those in Mack trucks, but
this information has not been verified.
44
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Trucking company is notified immediately and
activates well-oiled plan to defend
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1 hour response
Immediate Response Teams
Lawyer Directed Investigation – is it privileged?
Police are usually not trucking experts
Evidence can be lost
ECM
 Logs and support
 Documents are how you build additional theories of
liability
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Act immediately to preserve what can be preserved:
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Activate your Immediate Response Team
Secure all scene evidence
Secure vehicles and ECM evidence
Write Spoliation Letter for everything else

What’s good for the goose…
46
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Do not be a hypocrite
Preserve your vehicle. Give Defense an opportunity
to inspect your vehicle
What other evidence do you have control of that
you can preserve?
When going before the judge, you need to be the
most fair person.
47
Spoliation Letters
A spoliation letter should be sent as soon as possible to the driver, trucking
company and insurer requesting the preservation of evidence.
• Trucking companies have routine document destruction policies.
• Describe items of evidence and explain to the other side that this evidence
is crucial to your case.
• Remember to request that the company preserve the Electronic Control
Module (ECM)
• Ethical considerations require that you give no legal advice.
• The purpose of the spoliation letter is to ensure the most severe sanctions
available.
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Two Competing Theories

General Topics:
 Pros:
 Provides specific items that you can cite later in brief
 No confusion in what you are asking for
 Can list as many items as you want
 Cons
 You don’t know their business
 Can be viewed as over burdensome
 Gives the defense an excuse for not preserving relevant evidence
Send by certified mail!
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Two Competing Theories

Detailed list of items to preserve
 Pros:
 Puts the Burden on trucking company to know what relevant documents there are
 Company knows their internal procedures better than you
 Looks more reasonable
 Cons
 Not a common practice, so unsure how companies will respond
 Defense will argue that additional claims were unexpected
 Didn’t know evidence was going to be relevant
Send by certified mail!
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Anticipation of Litigation
Control Over Evidence
Evidence Not Available
Plaintiff Prejudiced
Evidence Relevant to Claims
51
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Anticipation of Litigation
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Knowledge of an accident not enough
Must show they had reason to believe claim would be filed
 Proof of service of spoliation letter
 Knowledge of insurance company not enough
 Depose person who received letter to prepare for motion
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Control over evidence

Must show they had the ability to preserve the evidence
 Owner-Operators control their tractor-trailer, not the company
 DOT and Police may take evidence from company
 Must show they had control or possession of evidence at the time they received
notice of potential claim.
 Destroying evidence prior to required retention time can be grounds for sanctions without notice of claim
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Evidence not available

Documents or evidence must not be available for you to inspect
 Cannot force a company to store a vehicle indefinitely (unreasonable)
 Can evidence be obtained from another source?
 Must show that evidence actually existed at one time
 What would the ECM show if we could have downloaded it?
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Plaintiff Prejudiced

Plaintiff must be prejudiced in the prosecution of their case by lack of
evidence
 What would the evidence have proved?
 Can you prove this another way?
 Could skid marks show speed without ECM?
 Could GPS data show time driving if logs are gone?
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
Evidence Relevant

Evidence must be relevant to the reasons the accident happened
 What are all your theories of negligence?
 Who are your Defendants?
 What do you need to prove to support these claims?
 How would this evidence have helped me?
 Is there other evidence that supports my position?
 Eg. Driver said he was tired at the scene could support claim he was over hours, so log books would be
relevant.
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
Sanctions against offending party in underlying
negligence action

Most Popular: A negative inference that evidence would have harmed
the spoliating party.
 Most states have this sanction
 Inference given is based on destroyed evidence

Exclusion of Expert Testimony
 If material reconstruction evidence is destroyed, then offending party cannot have
expert testimony about cause of accident. (Can be as bad a striking answer)


Exclusion of other evidence
Striking of Pleading (Most severe)
 This can be the striking of an Answer or Dismissing a Complaint
 Bad Faith Requirement in some jurisdictions
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
Independent Cause of Action:




Must prove the same elements of a discovery sanction
Who was the party that had control?
Was it intentional or negligent?
What were your damages?
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THE WORST
CASE SCENARIO

EVIDENCE
INVOLVED IN THE
BATTLE:
-DRIVER
QUALIFICATION FILE
-LEASE AGREEMENT
-PLACARDS





PN EXPRESS v. ZEGEL
Vicarious Liability
Missing Documents
Jury Instruction
Applied Statutory Employment
The absence of evidence WAS
the evidence
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EVIDENCE
INVOLVED IN
THE BATTLE:






SILLMAN v. ASSOC.
BELLMEADE
“Contemplated or Pending”
Litigation
Notice of Representation
Preservation Letter
NOT anticipation of litigation
How does this relate to trucking
cases?

ECM v. Logs
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




Have a document retention policy and FOLLOW IT
Get legal counsel involved early
Don’t rely on the insurance company to “take care of
it”-you have responsibility
Take preservation demands seriously
Go on the offensive
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Eric J.D. Rogers
Fried Rogers Goldberg LLC
Atlanta, GA
877-591-1801
[email protected]
Michael J. Leizerman
E.J. Leizerman & Associates LLC
Toledo, OH
800-628-4500
[email protected]
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