Getting What you Need in Discovery in Big Truck Cases

Trucking cases are different beasts. Tractor-trailers are colossal machines. Eighty Thousand pounds of steel encased force can be very dangerous things… especially when hurling at 75 miles per hour. Given the carnage that these behemoths can wreak, the stakes are high. When disaster strikes, an injured person is at a tremendous disadvantage compared to the truck driver, motor carrier, and insurer involved. The motor carriers regularly get crash response teams to the scene while first responders are still on-site. They talk to investigators. They attempt to weave defense strategy into the investigation and report, while getting information to otherwise assist in their defense. They collect and document evidence. They talk to lay witnesses. They try to talk to family. Expenses are not spared, because millions and millions of dollars are at risk. The scales of justice can unfairly tip towards the truck company/insurer’s cause as a result.

On the other side of the scales of justice, few injured people are so lucky as to engage competent legal counsel immediately after a major truck crash. Physical injuries, death, funerals, and attendant social stresses and financial issues wreak havoc on the lives of those on this other side of the scale. These realities as they are, truck cases can suffer from the disappearance of evidence, whether it is undiscovered, undocumented, inadvertently or intentionally destroyed. Technological evidence can be lost. Data is lost to re-recording. Video is lost to overwrite. When vast sums of insurance and trucking industry money are involved, anything can take place. Getting into a new significant case involving a commercial motor vehicle requires immediate action, and must take into consideration many industry specific variables that could provide a cause of action.

1. Use Spoliation Letters.

This paper is premised upon an assumption that prior to litigation, as soon as is practicable after the representation begins, a Spoliation Letter was issued to anyone connected with the truck and carrier seeking the preservation of evidence in the case. That said, after the Spoliation Letter is issued, in many cases, there is very little point in delaying litigation (unless perhaps damages would not warrant immediate litigation in the discretion of counsel).

2. Persist.

With the risks as high as they are in truck crash cases, trucking companies vigorously fight discovery. There are discovery abuses, and shady tricks employed. Document dumps, if they come, come in last minute supplementations. Document productions are often incomplete – with the company not providing counsel all documents that are responsive, or perhaps counsel electing against producing documents that are damaging for other reasons beyond the scope of this paper, right or wrong.

3. Question Pre-Litigation Discovery and Consider Suit Early.

Be aware of pre-litigation discovery unless your Rules of Court permit it in a formal capacity with enforcement available from the Courts. In my experience, it otherwise leads to very little of substance and can be a waste of time. Materials provided are often incomplete when there is no legal compulsion for providing all requested documents, and information otherwise conveyed is not verified under penalty of perjury. As a result, while pre-suit exchanges may give you a bit more background from which to commence your investigation into the case, it is often of little impeachment value when it later discovered as incomplete, misleading, or false. Therefore, an aggressive approach to written and deposition discovery, employing Motions to Compel when appropriate, is necessary in litigation.

4. Get the Truck. Get it Early. Document it Thoroughly.

You must examine the truck with appropriate expert assistance. Bring your reconstructionist, and make certain that the reconstructionist is qualified to conduct a thorough evaluation of the truck and to capture any data available within it. Practically speaking, this should occur as soon as one is able to do so after accepting a case. Evidence will be lost if a thorough truck inspection is not done in most cases since data storage equipment will often overwrite crash data if the truck is returned to service. In any event, if this has yet to occur when in litigation, inspect the truck and do it as soon as you are able pursuant to a FRCP 34 request.

5. Written Discovery: Be Thorough, Concise, and Tie it to the Spoliation Letter.

Every case is different, and a best practice is to customize written discovery for each specific case. With new Federal limitations under FRCP 33 and the newly amorphous “proportionality standard” under FRCP 26 for discovery, hours of crafting particular interrogatories and requests are frequently required. When crafting an interrogatory or document request, one has to ask, “Does the case really need this information?” Too often, using an old form will result in wasting an opportunity to perhaps craft a better, material interrogatory, for instance. Whatever is selected for request in an Interrogatory or with a FRCP Rule 34 request for documents or things should be well focused on the facts of the specific case. Justifying the need for an item when one has sloppily requested clearly irrelevant or overly burdensome discovery may not please the Court deciding whether you should get what you believe you really need.

What to do then? When one tailors discovery to the case, one should tie in the production requests to the spoliation letter so that one can easily and clearly show the Court that the evidence was properly requested preserved, and that the relevant discovery request simply mirrors the preservation demand within the spoliation letter. With an effectively drafted spoliation letter and discovery matching it, the case should get the requisite driver qualification, driver work history, driver disciplinary history, employment file contents, load, broker, shipper, ownership, maintenance, inspection, carrier history, crash and other materials needed to document the case. Should one not, one must fight the good fight, and seek sanctions for discovery abuses.

6. Depositions. Go Deep. Persist.

Depositions are essential in the trucking case. Cases with significant injuries should require taking depositions of more witnesses than simply the driver of the truck, a safety director, and a 30(b)(6) corporate designee. Critical thinking should go into who you will take by deposition. The 30(b)(6) deposition notice should be both general and specific – again tailored to the case. These cases and taking these depositions often require significant resources of time, travel, and money. Getting what is needed, again, always requires persistence. However, the further that one doggedly follows the evidence in a case, the more likely that important evidence will come to light. This means one must be prepared for the deposition, listen in the deposition, and force the deponent to answer the questions despite any histrionics of counsel.

Perhaps the least paid of employees working for the carrier, those who perform the most menial of functions at the carrier, might be your best source of unsanitized, unfiltered facts about how the company really runs its trucking operations. These people can offer testimony on practically everything that they know about how the company conducts its business; first hand observations are discoverable. Next, consider taking a deposition of the custodian of documents early in the case, working through the battery of documents that you believe will be essential to your case. Find out if documents exist. Find out if any should exist that are missing. Ask what computer data exists relative to the documents/case and what should exist. Get the names of people using those systems and filing those documents. Last, request those documents in deposition, having your Court reporter make a list, and follow up to get those documents and the data that is electronically stored produced as well.

7. Conduct Discovery Against Relevant Third Party Carrier Vendors.

Trucking companies outsource hosts of functions in their fleet management and operations. Third parties may be used to qualify drivers, for truck diagnostics, electronic logging devices, audit functions, safety functions, loss control, emergency response, maintenance, training, and other critical functions. Bear in mind that you are dealing often with people well schooled in the ways to avoid or evade damaging discovery. If information on a vendor system is helpful to the defense, chances are it may be produced willingly in response to your discovery request: the company will download that and save it to show you later since it hurts your case. However, if the Safety Director logs onto the telematics vendor account and sees proof of facts that evidence liability on the part of the carrier, chances are those materials will not be downloaded and saved for your case. Industry personnel will simply say they have no such documents, without guiding you to the vendor repository. Likewise, they could destroy the data intentionally, or perhaps even as simply as by virtue of letting the retention period lapse under a vendor contract and having that information be lost in the usual course of business. Go and depose the vendor. Request the contracts with the carrier and vendor, and run all issues to ground in order to see what data could, should, did and/or does exist in your case.

8. Use the Technology Available.

Trucking technology may provide proof of what really happened in a crash or otherwise explain why it happened, supplying counsel with a chance to level the playing field against the trucking company. Every responsible company will access this information when the crash occurs in its investigation. Again, engage an accident reconstructionist or other industry expert with extensive experience in large truck crash cases. This expert should have a working knowledge of the FMCSA regulations. This is critical. The expert needs to be current in truck technology – truck technology can monitor truck diagnostics and provide details of what the truck experienced before the crash. And note – this technology is ever-evolving. More data is now stored and transmitted than ever before in this industry. This is more than simple black box technology. Examples of available technology that you may be able to include:

Electronic Logging Devices.

Commercial motor carriers now must log hours electronically with logging systems. These systems plug into the diagnostic port in the cab and can cost as little as under $100.00. Some are much more advanced than others, and there are many on the market. There is some debate as to whether or not EDLs can be manipulated; however, if driver fatigue may have played a role in the crash, the expert engaged is going to need to determine whether other documentation matches the ELDs, and to test the ELD data. Recently while attending a trucking industry conference, I had the pleasure of participating in a discussion of how the logs could be manipulated. A driver explained how he thought that he craftily did it. The corporate representative argued that the entries that he would modify/make would be recorded, and easily identified as potentially fraudulent. My take-away from the conversation was that it remains a best practice to engage a technologically proficient expert who will properly analyze the ELD data for any fraudulent entries and to further have that expert map the ELDs against available other load/truck/fuel documentation to track the driver’s hours of service.

Electronic Warning Systems

According to the National Highway Traffic Safety Administration (NHTSA), 93 percent of all accidents involve driver error, with the majority of those accidents related to driver inattention. NHTSA research also shows that one extra second of warning could prevent up to 90 percent of rear-end collisions. Accident avoidance systems are not required by law presently. However, the failure to implement this available technology – or perhaps ignoring it if it is in use – could be admissible in the right case. There are multiple types of warning systems, and these systems can contain historic data of what warnings were sounded and what conditions were detected. Notably, these systems can be ignored, or perhaps even circumvented or simply disengaged. These systems log instances of driver misconduct and error. They can relay that information to the carrier for driver behavior modification or discipline. If this carrier was aware of a particular driver’s bad habit that led to the crash involved in the case, this information is of tremendous evidentiary value.

Forward, Side and Rear Object Detection Systems

These systems monitor the roadway and potential hazards around the truck, providing a warning of perceived threats or emergency conditions. Systems will sweep the roadway in front, on the side, and to the rear of a vehicle. Safe intervals can be established by monitoring conditions ahead of a vehicle – conditioning the driver to maintain such safe distances in Pavlovian style. With the distractions available to drivers today, in addition to fatigue given the hours of service one can legally drive and the fact that many drivers log more miles than permitted by law, a warning of an approaching object can save lives. Also, these systems work in adverse weather, giving the driver a greater ability to “see through” fog, snow or sleet.

Rear object detection systems monitor a specific area behind a commercial motor vehicle, detect objects, and provide warnings to drivers when they are approaching an object behind the vehicle while in reverse. These systems assist the driver in avoiding collisions during backing or parking maneuvers. Loading and crush injuries can be avoided with these devices as they are functional for 10-20 feet.

Lane Departure Warning Systems.

Lane Departure Warning Systems are in-vehicle electronic systems that monitor the position of a vehicle within a roadway lane and warn a driver if the vehicle deviates or is about to deviate outside the lane. This technology is not required by law either, with implementation voluntary. Currently available LDWS are forward looking, vision-based systems that use algorithms to interpret video images to estimate vehicle state (lateral position, lateral velocity, heading, etc.) and roadway alignment (lane width, road curvature, etc.). LDWS warn the driver of a lane departure when the vehicle is traveling above a certain speed threshold and the vehicle’s turn signal is not in use. In addition, LDWS notify the driver when lane markings are inadequate for detection, or if the system malfunctions. LDWS do not take any automatic action to avoid a lane departure or to control the vehicle; therefore, drivers remain responsible for the safe operation of their vehicles. When the vehicle is traveling in close proximity to the center of the lane it is within the system’s “no warning zone,” the system does not issue any position warnings. As the vehicle deviates from the no warning zone the system calculates the time for the vehicle to exit the lane. The LDWS calculates an earliest and latest warning line.

Tracking and Communication Systems

These systems permit GPS tracking, reconstruction of routes, times and hours of service issues, and also may provide data (or lack thereof) provided to drivers on weather or other conditions. Matching a driver or driving team’s log books to Omnitrac/Qualcomm satellite positioning data can test the accuracy of the records and perhaps prove that the logs were fraudulently maintained. Data preserved can include texting data between dispatch and the drivers (such as “why isn’t your truck moving on the map…”). These systems can also provide documentation of speeding, hard braking, and other safety related issues – providing safety managers the ability to remotely monitor driver’s in the field, and fodder for cross examination should a driver have a history of violations of safety rules.

“Black Box” Event and Crash Data Recorders.

Industry terminology varies, though the National Highway Traffic Safety Administration (NHTSA) refers to the devices commonly called “black boxes” as Event Data Recorders (EDRs). Many manufacturers refer to the devices as Crash Data Recorders (CDRs). The recorders will trigger when preset physical conditions nearing those sufficient for the airbag to deploy are met – “waking-up” and recording data. Extraction of the data after the event is time sensitive.

In general, if an airbag deploys, the unit will permanently write and capture data. Therefore, if that unit is to be replaced when the vehicle is repaired, measures must be taken to collect and preserve the unit and its data. Losing the unit, loses the data… Likewise, if the vehicle is involved in an accident in which the airbag is not deployed, the recorder may still trigger during this “non-deployment event.” It will write data from a non-deployment event and retain that data for a limited time period. In some units, that period consists of 250 engine ignition cycles. Low impact collisions, therefore, will require early retrieval of the recorder to prohibit loss of the data upon ignition at the 251^st start after the collision.

Data recorded varies by manufacturer, make, and model. Some units are more advanced than others. This information may be proprietary, and you may have to bring in someone with licensure by the vendor to make the download. The “crash pulse” is recorded in seemingly all recorders – this relates to the Delta V at the time of the crash. NHTSA has required new buses and motor coaches manufactured after January 1, 2003 to incorporate very advanced systems capturing most of the data below:

lateral acceleration
longitudinal acceleration
vertical acceleration
deceleration
heading
vehicle speed
engine speed
seat belt status
braking input
steering input
gear selection
DeltaV
turn signal status
brake light status
head/tail light status
hazard light status
brake system status
ABS status
stability control status
environmental conditions
cruise control status
throttle position
airbag deployment criteria
airbag deployment time
airbag deployment energy
time between airbag non-deploy and deploy event
ignition cycle count at investigation and event time
On-Board Camera Systems.

Many carriers are installing on-board cameras. Some systems have forward, side, rear, and even driver views. With driver view cameras, the driver is actually on camera in the crash. There can be a record of everything going on outside or inside of the cabin of the truck.

9. Police, First Responder, and other Investigating Agency Materials.

Along with conducting discovery against the trucking company, you need to obtain the materials of agencies investigating the crash if permissible, and the records of emergency responders.

10. Media Footage – the Crash – the Weather – any other Pertinent Coverage.

Make requests to media sources covering the crash as soon as you are able. Use a subpoena if needed to get what is available. Get coverage of the crash and anything else noteworthy, such as the weather reporting for the crash area and date. Footage of a Weather Broadcaster standing in sleet and snow advising everyone to stay off the roads, for example, might be quite a help in conveying to a jury just how irresponsible a driver was in a case involving hazardous weather conditions.

In close, big trucks cause big crashes. Big crashes yield big cases. Big cases require big effort and personal investment of abundant attorney time and financial resources. Working the file diligently early and throughout, and hiring appropriate experts and co-counsel, is a must. An elementary understanding of the trucking injury is a ticket to a malpractice claim or bar complaint. Proper development of the big truck case will drive substantially higher jury verdict and settlement values. What is obtained through discovery makes or breaks the case. The cases are hard fought, and the work is often gritty. These cases are typically long in duration, making the financial commitments that much more difficult. However, righting a wrong, making the roadways safer, and helping to make a family or client as whole as the law and money damages permit, is its own just reward.