After Your Truck Accident : Spoliation of Evidence and what needs to be done to avoid it
San Antonio Personal Injury Lawyers » Spoliation of Evidence
Protecting Important Evidence Following an Injury Accident With a Commercial Vehicle
San Antonio 18 wheeler Accident Lawyer
Just about every business, regardless of size, keeps and maintains business records and other documents. Business documents can come in many forms such as company manuals, emails, logs, spreadsheets, employee files, etc.
Trucking companies are no different. They collect data and maintain certain records as a part of their normal course of business. Some of this data they are required by the Federal Motor Carrier Safety Administration to collect and maintain, and some of it is collected and maintained for the trucking company’s own use. These business records are often used in trucking company litigation cases as evidence to demonstrate the trucking company’s compliance with industry standards and federal law.
When the trucking company receives notice of your accident with one of their tractor-trailers they may try to destroy any business records that could reveal their negligence and help your case. The act of destroying evidence in this manner is called Spoliation of Evidence. Spoliation is defined as the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. If this happens there are steps that can be taken to hold the trucking company accountable for destroying evidence, but sometimes this can be difficult to prove. This is why it is so important to contact the attorneys at our Law Offices as soon as possible after your accident. Our attorneys know what actions to take to help prevent the spoliation of evidence crucial to your case and what to do if the trucking company has taken steps to destroy this evidence.
Preventing Spoliation of Evidence
There are already laws and other policies in place to deter or prevent trucking companies from destroying evidence and committing spoliation, yet sometimes the trucking companies consider the evidence so damaging they take the chance and destroy evidence. In addition to the federal law as dictated by the Federal Motor Carrier Safety Administration, plaintiff’s attorneys can intervene and send a notice to the trucking company regarding their duty to preserve certain records after an accident and they can even have the courts intervene by issuing a restraining order.
As mentioned above, the Federal Motor Carrier Safety Administration requires trucking companies to maintain certain data about its truck drivers, its fleet of trucks, driver logs and accident information for a certain period of time. Failure to do so or destruction of these records is a direct violation of these laws. There is a retention schedule for certain business records outlined in the FMCSA guidelines. Per the FMCSA guidelines, the trucking companies should maintain the following records below:
Record Type Retention Schedule
Hours of Service Records 6 Months
Vehicle Maintenance Records 1 Year or 6 Months if vehicle has been sold
Drug and Alcohol Testing Results 1 Year Negative Results; 5 Years Positive Results
Driver Qualification Files 3 Years
Accident Reports 1 Year following the accident
Additionally, the FMCSA guidelines also provide direction on how the trucking companies should treat their business records once litigation is anticipated. The guidelines advise that once litigation is anticipated, any records or information relevant to the litigation should be preserved. The rules also require that the trucking companies take steps to prevent the destruction or alteration of any potentially relevant information. To ensure that they are meeting the requirements of the FMCSA, the trucking companies should stop any normal business practices of purging their records if the commencement of a law suit is reasonably anticipated. This means that the trucking company has a duty to preserve the information and documents related to your accident even if it is their normal practice to delete this information from their records.
Your Attorney’s Tools – Notice to Preserve and Temporary Restraining Orders
The trucking companies are fully aware of their duty to maintain certain records once they have been made aware of your accident with one of their tractor-trailers. However, knowing this duty and complying with it are two different things. If you are handling your claim alone you may find it difficult to understand what information and documents the trucking company must maintain and how to enforce their duty to maintain and supply this information to you. This is why having attorneys like ours at is so important. We know what steps to take to enforce the trucking company’s duty to you. There are two effective means that our attorneys use to prevent the trucking company from committing spoliation of evidence: written notice and temporary restraining orders.
Notice to Preserve
Contacting the attorneys at ourLaw Offices as early as possible after your accident with the trucking company’s tractor-trailer is important because there are things we can do to prevent the destruction of evidence needed in your case, but this needs to be done early on. We can put the trucking company on notice and outline specific documents and files we need them to preserve by sending them a formal written request. This formal request serves two purposes. First, it puts the trucking company on formal notice of your claim and gives us the opportunity to outline the specific data and information related to the truck and the truck driver that we want the trucking company to preserve. Second, the letter serves as our demonstration to the courts that the notice was provided to the trucking company and we can use this to support our request for a temporary restraining order against the trucking company for non-compliance with the notice to preserve or if we have to make an actual claim of spoliation of evidence against the trucking company later in the case.
Getting the notice to preserve out to the trucking company as early as possible is crucial to your case and can go a long way to ensure we have the evidence necessary to hold them liable for your injuries. Contacting our attorneys at our Law Offices as soon as possible after your accident can help you get the evidence needed to be successful in your claim.
Temporary Restraining Orders
If after notice has been provided to the trucking company regarding the accident and the documents and information we wish to preserve and the information is not forth coming or something happens that alerts us that the evidence could be lost, our attorneys can file a temporary restraining order issued by the court to compel the trucking company to retain the information or provided to us immediately. Though this option is available it is often difficult to prove, so we seek this option with an abundance of caution. Seeking a temporary restraining order and being denied by the court might slow down the momentum for your case so the risk versus the reward in taking this action will be carefully considered by our attorneys on your case.
Spoliation of Evidence – Recourse
Though there are federal laws place and attorney actions available to prevent the trucking company from destroying evidence, these measures may not be enough or may be employed too late to be effective. The courts consider spoliation of evidence an abuse of discovery. Penalties for discovery abuses can range from monetary sanctions to exclusion of other evidence. If spoliation of evidence has occurred and the trucking company has intentionally destroyed evidence or did not take the appropriate steps to prevent the loss of the evidence there are penalties that the judge can enforce against the trucking company. First, the judge can rule that there is a presumption that the destroyed evidence was negative to the trucking company’s position. Second, the judge can hand down “death penalty” sanctions against the trucking company.
Presumption of Adverse Inference
If the evidence has been willfully destroyed or not preserved by the trucking company and we are able to prove this destruction was willful and occurred after they had notice of the need for these documents, the judge can rule that there is a presumption of an adverse inference against the trucking company. This means that a jury gets to presume or conclude that the evidence that was destroyed was detrimental to the trucking company’s case. The deletion of company emails and records, the loss of the driver’s logs, missing drug test results are all prime examples of the type of evidence that if missing or destroyed can be presumed against the trucking company if their actions were willful.
Obviously a presumption of this nature is harmful to the trucking company and you would think they would work harder to avoid this from occurring, but unfortunately it does. Trucking companies roll the dice and destroy evidence because they think they won’t get caught or even if you do realize they have destroyed the evidence you need you will not be able to do anything about it. Making the trucking companies accountable for the spoliation of evidence can be difficult on your own. Evidence destruction by the trucking companies are not isolated incidents. This happens often enough that having an attorney on your side that knows how to push for the right sanctions against the trucking company can be crucial to your claim. The attorneys atThe Ford and Laurel Law Offices can help you preserve the evidence you need and go after the trucking companies if they destroy it.
A Judges Ruling
When the judge finds that the trucking company’s destruction of evidence was willful or egregious enough he or she may take the additional step in ruling for death penalty sanctions against the trucking company’s case. Death penalty sanctions are those that essentially end a case. Because these sanctions have such serious consequences the judge will carefully consider all aspects surrounding the spoliation of the evidence. Some factors the judge will consider are: the impact the loss of evidence will have on the innocent party, if the evidence can be obtained or reconstructed by other means, the timing of the destruction of the evidence, the size and structure of the organization involved, and other circumstances surrounding the destruction of the evidence. The judge can even consider if the trucking company has been sanctioned for discovery abuse in other matters to determine if they have a pattern of willful and knowing destruction of evidence. If the judge does find the trucking company acted in this manner in destroying the evidence, the death penalty sanctions can strip the trucking company of any defense for their liability in the case. If that happens, you have essentially won the case and all that remains is the determination of damages the trucking company must pay.
Proving spoliation of evidence can be difficult to do on your own. There are many points that must be covered if you want the court to penalize the trucking company for destroying evidence. Don’t put evidence crucial to your case at risk by going it alone. Our attorneys at Ford and Laurel Law Offices know how to present what the trucking company has done to court in the correct manner so their destruction of evidence does not go unpunished. Call us today,
Truck Accident Statistics for Texas 2016