For The Defense, December 2011 - DRI Today

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Trucking Law there is no way to know whether the evidence is authentic. Consider the half-filled whiskey bottle that an adjuster finds on the floor of a claimant’s car. If the adjuster photographs the bottle in place at the scene, and labels, logs, and stores it in a secure place, the team’s attorney should have no problems with its authenticity in a trial. Failing to take those steps will have the opposite effect. The consequences of a judge finding or a jury believing that spoliation has occurred are several orders of magnitude worse than evidence that a driver had a single hours- of- service violation seven days before an accident. The American Society for Testing and Materials (ASTM) has at least two publications, Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator, E1188- 05, and Standard Practice for Examining and Preparing Items That Are or May Become Involved in Criminal or Civil Litigation, E860-07, dealing with collecting and preserving evidence. A team’s technical experts should understand the importance of properly preserving evidence, and it may be wise to avoid doing business with—at least in catastrophic cases—experts who are not familiar with the ASTM standards. Spoliation of Evidence Spoliation is defined as the negligent or willful destruction of evidence by a party to litigation. Such a loss of evidence has very serious consequences, consequences that almost always outweigh any negative ramifications associated with admission of that evidence. Assume that a driver falsified his log book seven days before an accident. A 54 ■ For The Defense ■ December 2011 trucking company may be inclined to strictly follow the six-month retention period mandated by 49 C.F.R. §395(k), especially if a claimant’s attorney hasn’t requested that the company preserve the evidence. In this situation, the trucking company could face a number of negative consequences. In some jurisdictions spoliation of evidence can create a separate cause of action that results in a separate judgment, including perhaps punitive damages. Other consequences include the “adverse presumption” in which a court instructs a jury that the evidence lost or destroyed must have been detrimental to the party that lost it. This allows a jury to speculate wildly about the evils that the evidence must have contained. Think of the 18 minutes missing from the Watergate tapes. A finding of spoliation could also result in the exclusion of favorable evidence that an offending party wishes to admit. An equally harmful consequence is the potential loss of credibility with the jury that comes from a destruction of evidence. Many cases hinge on how a jury perceives the trustworthiness of the parties, and evidence spoliation may make it appear that a trucking company has a guilty conscience. The consequences of a judge finding or a jury believing that spoliation has occurred are several orders of magnitude worse than evidence that a driver had a single hours- of- service violation seven days before an accident. Since a rapid response team’s responsibilities include collecting and preserving evidence on the scene, the attorney responsible for the “go” team should also make it clear to the rest of the team that they need to avoid even the appearance that evidence was destroyed or mishandled. Any costs or aggravation associated with saving evidence—even harmful evidence— are far less than the costs associated with an adverse court finding on spoliation. Protecting the Fruits of the Team’s Labor As the material gathered by a rapid response team is relevant to postaccident litigation, it is subject to discovery unless shielded by the attorney- client privilege or the work- product doctrine. Attorney-Client Privilege The attorney-client privilege protects from discovery communications between a client and counsel made in the course of legal representation. This concept has critical application to a rapid response team’s investigation. First, and most importantly, a driver involved in an accident must make all statements to the team’s attorney, not to a company representative or a field adjuster. In most cases a driver ultimately will be named a codefendant with the trucking company, and any communication between the driver and the attorney will receive attorney- client protection. Protecting a driver’s statement can prove critical in the immediate aftermath of an accident. For example, a driver distraught over a horrific accident may accept more responsibility just after the accident than he might when he later learns, for instance, that the driver of another vehicle involved was legally drunk. It is also important that the lawyer serve as the conduit between the other team members and the trucking company. While statements made by team members won’t have attorney- client protection, funneling communications through the lawyer will strengthen the argument that the team’s efforts were undertaken in anticipation of litigation. Work-Product Doctrine The work-product doctrine protects from discovery documents and other tangible things prepared by a party, or representative of a party, in anticipation of litigation. This doctrine does not protect materials assembled in the ordinary course of business, or for non- litigation purposes. So the threshold determination that a court will make when deciding whether to protect the fruits of a team’s efforts is whether an investigation was conducted in anticipation of litigation or in the ordinary course of business. To make that determination a court will ask if a trucking company would have created a document regardless of whether litigation was expected to ensue. For example, a report prepared by a dispatcher when a driver calls in an accident, or a report prepared by a company’s safety department describing an accident and its causes, will likely be discoverable because a trucking company typically prepares these after every accident and not just those that a company anticipates will lead to litigation. In determining the primary motivation for creating a document a court will con- Rapid
Trucking Law To Cooperate or Not… That Is the Question! By Brian Del Gatto and Julia Paridis Use of response teams, as well as driver training, can limit potentially damaging statements. Postaccident Police Investigations Consider the following hypothetical scenario. A driver for your motor carrier client is headed to a rest stop for a much-needed break. Before moving into the exit-only lane, he or she checks his or her rear- and side-view mirrors and doesn’t notice any cars in the lane to his or her right. As the driver signals to change lanes and moves right into the exit lane, the driver’s phone rings, and he or she looks down for a second to determine who it is. The driver then looks up just as the rightfront passenger side of the tractor collides with the left-back driver side of a four-door sedan. The motor carrier’s driver pulls over and is confronted by someone yelling, “You hit me!” The person complains of neck and back pain and calls 911. The ambulance arrives and places the sedan driver on a stretcher while he or she lists the various injuries that he or she has suffered, none serious or life threatening. When an officer arrives, he or she takes the sedan driver’s statement first. The sedan driver claims that he or she saw the driver of the truck looking down at something immediately before the truck veered into the sedan’s lane and hit the car, and the truck driver never used the truck’s turn signal. The officer approaches the motor carrier’s driver for a statement. The next few minutes are crucial and will have a profound impact on the ultimate outcome of this matter for the driver, the motor carrier, and the insurers of each. Postaccident Investigations The policeman on the beat or in the patrol car makes more decisions and exercises broader discretion affecting the daily lives of people every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week. —Warren E. Burger, Standards Relating to the Urban Police Function, American Bar Association: Advisory Committee on the Police Function (1972) People sometimes don’t report minor collisions. The parties simply exchange insurance information; however, most collisions that result in property damage or physical injuries are reported. And the officer who arrives on the scene of an accident has a duty to investigate the circumstances and to prepare a report. When an officer per- ■ Brian Del Gatto is the managing partner of Wilson Elser’s Stamford, Connecticut, office and a member of the firm’s executive committee. He practices in both Connecticut and New York, handling cases in both jurisdictions. He is the practice team leader of the firm’s Transportation & Logistics Practice. Julia Paridis is an associate in Wilson Elser’s Stamford office and a member of the firm’s Transportation & Logistics Practice. For The Defense ■ December 2011 ■ 55
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