Trucking cases are far more complex than car wreck cases. Not only are there potentially more responsible parties to consider, but there is much more evidence available both from publicly available sources and from the motor carrier (“trucking company”). The first 30 to 60 days following a trucking crash are critical for evidence gathering and preservation.
Evidence Preservation Letters
As soon as the client contract has been signed, it is an absolute “must” for a lawyer to send the motor carrier an evidence preservation letter. At a minimum, this letter should specifically request that the motor carrier preserve categories of documents such as:
- driver’s daily logs maintained pursuant to 49 CFR Part 395.8 of the Federal Motor Carrier Safety Regulations and supporting documents maintained pursuant to 49 CFR PART 395.8(k) for the driver involved in the incident
- driver’s daily inspection reports for the involved driver pursuant to 49 CFR Part 396.11 and 396.13
- records pertaining to dispatch of the involved tractor, trailer, and driver, including but not limited to dispatch logs, driver call-in logs, and telephone records of driver/dispatch communications
- fuel receipts, toll receipts, hotel/motel receipts, and meal receipts of the driver involved in the incident
- maintenance records for the involved tractor and trailer
- the accident register and reports filed pursuant to 49 CFR Part 390.15 of the Federal Motor Carrier Safety Regulations
- documents produced in conjunction with the completion of the accident register
- documents reflecting ownership of the involved tractor and trailer as of the date of the subject collision
- leases covering the involved tractor and trailer as of the date of the subject incident
- documents reflecting the whereabouts of the involved tractor and trailer [for at least the ten days leading up to and including the subject collision]
- bills of lading, shipping invoices, manifests, waybills, routing slips, or delivery schedules for any shipments hauled by the involved driver
- documentation required to be maintained by state laws and regulations, the Code of Federal Regulations, and the Federal Motor Carrier Safety Regulations
- IFTA (International Fuel Tax Agreement) reports of the vehicle involved in the collision
- records and electronic data on any onboard recording Electronic Control Module (ECM) or Motor Vehicle Event Data Recorder (MVEDR) on the involved tractor and trailer
- all electronically stored information (ESI) concerning the subject collision, the involved driver, and the involved tractor and trailer
Motor carriers, brokers, freight forwarders (and others) must maintain certain categories of records for specific minimum retention periods. The schedule of records to be preserved and the minimum required retention periods can be found in Appendix A of Part 379 of the Federal Motor Carrier Safety Regulations.
Many categories of documents must be preserved for no longer than six months, so an evidence preservation letter must be sent as soon as possible following a trucking crash. This is necessary to ensure that critical documents are not destroyed in the trucking company’s ordinary course of business after the collision.
Electronic Control Modules and Event Data Recorders
In addition to the documents maintained by the motor carrier, the involved tractor and perhaps even the trailer will have electronic onboard recording devices like an Electronic Control Module (ECM) or Event Data Recorder (EDR). These can provide a wealth of information about the operation of the tractor in the moments leading up to the collision. Be sure to request that the motor carrier make the involved tractor and trailer available for inspection and download of the ECM/EDR by an appropriate expert. You should also request that the motor carrier provides your expert access to the tractor to start the engine, charge the air reservoirs, and allow brake system examination and testing. Time is of the essence in obtaining access to the tractor and its ECM/EDR because valuable data can and will be overwritten once the tractor is driven.
Perhaps most importantly, the electronic devices in possession of the involved truck driver at the time of the collision will tell you invaluable information about where the driver has been, what he has been doing, and who he has been communicating with. Your evidence preservation letter should therefore request the preservation of every communication device that was in the tractor at the time of the collision, as well as all documents reflecting usage and billing for each such device for at least ten (10) days before the crash and 24 hours after the crash.
