Motor carriers who have been involved in personal injury litigation know all too well the role and impact vehicle generated information can have in a lawsuit. Electronic Control Modules ("ECM"), standard on commercial vehicles, record information such as quick stops, hard braking events, vehicle speed and RPMs, among other data points. Other technologies, such as Qualcomm or VORAD systems, collect even more detailed information regarding the operation of a commercial vehicle. The fast approaching electronic logging device ("ELD") mandate will only add to the plethora of information already out there. Such information is critical in litigation as it represents an "unbiased" source of information; as such, it is often the subject of preservation of evidence letters and subsequently used by attorneys in litigation to re-create an accident in an effort to establish the negligence of a driver or motor carrier. For many years, the advantage gained by having access to such information has, for the most part, been one sided. That is about to change.
The internet of things ("IoT") generally refers to the interconnection of everyday objects, enabling them to send and receive data; the auto industry is no stranger to this phenomenon. In order to satisfy ever increasing consumer demand for the next and best gadget, auto manufacturers are increasingly equipping their vehicles with technology so that a person's car is merely an extension of one's personal computer or smartphone. Passenger vehicles are equipped with "black boxes" that track data similar to the ECMs found in commercial vehicles and some auto manufacturers offer in-vehicle travel assist features, such as BMW ConnectedDrive or General Motors' OnStar, which generate additional information regarding the vehicle and its occupants. However, the collection and leveraging of information generated by passenger vehicles have not been realized in litigation to the same extent as information collected from commercial vehicles. As auto manufacturers satisfy consumer demand for interconnectivity, the data available regarding a passenger vehicle operator has increased exponentially and has the potential for a much broader impact on personal injury/trucking litigation.
When an individual synchronizes a smart phone to a car to enable hands free calling or connects a phone to a car via a USB cord to play music, that individual is often transmitting more data about themselves to the vehicle than they think. In today's world where personal privacy has taken a back seat to mobile devices and the internet, it should come as no surprise that the now commonplace "infotainment" systems in passenger vehicles facilitate the collection and storage of information such as GPS location, phone logs, text message records, photographs, videos and contacts. In addition, navigation data such as previous destinations, routes, and saved locations, may also be transferred and stored. The collection and storage of personal data, as well as the ability to retrieve it, continues to evolve. Questions abound regarding data privacy, data ownership, and, most importantly, who must authorize the collection and use of this information.
Although questions may exist regarding the collection and use of infotainment generated information, litigants must be cognizant of the fact that this information exists and be diligent in taking steps to ensure that it is preserved. Litigation is often initiated years after an accident, vehicle owners or insurance carriers must quickly be put on notice after an accident to take steps to ensure that all such data is preserved. Motor carriers typically have in place accident response policies and procedures, as well as an accident response team, to guide steps taken in response to an accident. Accident response policies and procedures should include sending a preservation of evidence letter to the passenger vehicle owner and his/her insurance carrier that now requests the preservation of infotainment and telematics information. The preservation of evidence letter should further specify that no steps are to be taken to erase or override any personal information of the operator or occupants that may be stored in the vehicle. In addition, motor carriers should identify and include as part of their accident response team, an engineer or other individual with the experience and expertise to identify and retrieve infotainment and/or telematic information.
Passenger vehicles generate, collect, and store a wealth of information regarding its operator and the vehicle's use. The ability to access and analyze this information in litigation has the potential to level the playing field between claimants and defendants. Where motor carriers were previously required to preserve and account for the information generated by their vehicles, the owners of passenger vehicles will now be held to the same standard. The tide is turning, and it is sure to have an impact on personal injury/trucking litigation.
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