An evidence preservation letter is a written request that certain documents, electronically-stored information and data (“e-data”), and vehicles be preserved in anticipation of future litigation. One of the first questions we hear is, “What evidence is really necessary?” Although demands to preserve evidence may be onerous and burdensome, it is important to begin collecting this evidence as soon as possible. Lawsuits may be initiated well after the triggering incident. The more time that passes before a suit is filed, the more difficult it will be to retrieve the necessary evidence for the motor carrier’s defense. Frequently, attorneys for plaintiffs send the evidence preservation letters in hopes that some of the evidence will not be preserved and the court will instruct a jury on the adverse implication of the motor carrier’s failure to preserve some of the evidence.

When a motor carrier receives a preservation letter, any response should be in writing to ensure that the discussions are memorialized and that there is no confusion as to each party’s obligations. Ideally, the carrier issues the response through its attorney or after the response is reviewed by an attorney. The response letter provides the opportunity to establish parameters for what is considered relevant to future litigation and can place the burden on the claimant’s attorney to provide support for broadening those parameters. The primary goal for the motor carrier is to limit the scope of what must be preserved to materials that will be relevant to an investigation and future litigation.

It is beneficial for the motor carrier to include in the response its goal of preserving relevant evidence and the measures the motor carrier is taking to identify and preserve the evidence. If the carrier disagrees with the parameters or scope of the preservation request, state the disagreement, explain the rationale for the disagreement, and offer to consider taking additional measures if the adverse party can provide a legal basis for their position.

The response letter gives the motor carrier the opportunity to request that the claimant’s attorney retain the claimant’s vehicle and e-data, photographs and videos, cell phone records, text messages, e-mails, and social media data. It is a nice reminder to the claimant’s attorney that the door swings both ways on the preservation of evidence, and the response can serve as a foundation for any motion practice later on. Establishing a proper foundation at the onset will be useful to avoid incurring costs and time-consuming detours for claims of spoliation and motions seeking discovery sanctions for failure to preserve relevant evidence.

When thinking about what evidence the motor carrier needs to preserve, the scope of the preservation letter will be driven by the relevant facts and circumstances of the accident at issue. Rule 401 of the North Carolina Rules of Evidence defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The most important task is gathering the information needed to defend the anticipated lawsuit in a way that minimizes potential discovery disputes, maximizes the ability to convey a strong defense, and avoids spoliation allegations.

Because of the likelihood of litigation, it is crucial to gather certain documents following an incident. Relevant evidence to preserve frequently includes the following:

  • Mobile phone records for the day of the accident and day prior to the accident;
  • Data from any satellite system (GPS) you had for the subject tractor;
  • Video from any camera you had in your tractor at the time of the accident;
  • HOS logs for 3 months leading to the accident;
  • Driver qualification and personnel files;
  • Results of any drug/alcohol tests (both before and after accident);
  • Any documents provided by law enforcement (e.g., citation, inspection reports, business cards, etc.);
  • Service and maintenance records for the commercial motor vehicle for the past 3 years;
  • Title and vehicle registration to the truck;
  • All shipping documents related to the cargo being transported at the time of the accident (e.g., dispatch records, bill(s) of lading, instructions, etc.);
  • Fuel receipts and reimbursement receipts (for meals, etc.) for the driver 30 days prior to the accident;
  • Maintenance records for the truck.

We recognize that this is lot of information. However, it is very important to preserve this evidence at the onset to ensure it will be available when a suit is filed.

Allen Smith

Allen Smith
Charlotte
704.319.5449
acsmith@hedrickgardner.com

The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2019 Hedrick Gardner Kincheloe & Garofalo LLP