One of the first critical steps after an accident has occurred is to ensure that documents related to the accident, the company driver, and the company vehicle are preserved. This is especially true when the accident involves a fatality or serious injury where a lawsuit may be asserted against the carrier down the road.
In most states, a company has a duty to preserve evidence when it reasonably anticipates litigation. The evidence that must be preserved are those documents and items that it knows, or reasonably should know, are relevant to the action. Once the duty to preserve attaches, a company must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.
For motor carriers, the driver’s DQ file and other personnel files, the driver’s logs and trip sheets, the vehicle inspection reports and vehicle maintenance records are documents that should be preserved after almost every accident where litigation is anticipated. Evidence of damage to the truck and trailer should also be captured and preserved. Bear in mind, however, that the documents and items to preserve should be determined on a case-by-case basis.
The importance of preserving these documents and other items lies in the sanctions that could result by failing to preserve them. After suit is filed, if the party bringing the lawsuit discovers that relevant documents (or even potentially relevant documents) have been lost or destroyed, the party can seek sanctions from the company related to the loss or destruction. Such sanctions can be monetary, or can take other forms. For instance, if the driver’s log for the date of the accident is no longer available, the judge may instruct the jury to presume that the log would have reflected negatively on the carrier (e.g., the driver was over his hours). The jury could then infer that the driver was fatigued and that is what caused the accident. If, in fact, the log was compliant with the hours-of-service regulations, and the driver had just started his run, this type of jury instruction is certainly one the carrier should avoid. Preservation of key documents during the first moments after an accident is the best solution.
One practical way for a carrier to ensure that relevant documents are being preserved in the moments after an accident is to create a preservation letter. After an accident occurs where litigation is anticipated, the preservation letter should be sent to key personnel who have access to the relevant documents, such as the safety manager, the driver’s terminal manager or dispatcher. The letter should provide information regarding the accident, such as when and where it occurred and who was involved. It should also instruct the recipient to preserve documents and items related to the accident and provide a concrete list of items. The list does not need to be a complete list. In fact, the letter should encourage preservation and thinking outside the box relating to what needs to be preserved. Preservation letters that Roetzel attorneys have drafted on behalf of their clients include the phrase When In Doubt, Don’t Throw It Out! Finally, the preservation letter should instruct the recipient to send the letter to all other persons who may have access to documents and items so that they can preserve documents as well.
Once the documents are gathered as a result of the preservation process, they should be copied and kept separately from all other files. A good name for this new file is “Anticipation Of Litigation File” because it shows the company is anticipating a lawsuit and has made efforts to preserve documents related to the accident. If and when a lawsuit is later filed, the carrier will then be in a position to provide relevant documents to the other party through the discovery process. Of course, this does not mean all preserved documents will be turned over. The company can still withhold documents based on privileges and other good cause reasons. However, should a dispute arise over whether a document must be produced, and if the judge orders it to be produced, sanctions surely await if the document has been lost or destroyed. Once again, preservation is always the better scenario.
Having a procedure in place to preserve documents also has an added benefit. Despite a company’s best efforts to preserve documents and items, there are occasions when a document or item simply cannot be found once the matter is in suit. If the company had sent a preservation letter to key personnel and had initiated the preservation process, it is much more likely to avoid sanctions. This is because the preservation letter provides evidence to the court that the company did not intentionally destroy the items that are now missing. Without a finding of intentional conduct, the court is less likely to impose sanctions.
The importance of document preservation in the hours and days after a serious accident occurs cannot be understated. Not only does the preservation of documents and items help the company avoid sanctions if and when a lawsuit is later filed, but it can also help the company defend the case by preserving evidence that supports the company’s position. While creating a preservation system may require some “up front” time and effort when it is unclear whether a lawsuit will even commence, there are only benefits to the company by preserving documents and items. And, when efforts are made to determine what should and should not be preserved, when in doubt . . . don’t throw it out!