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On The Record 

Focus on the Long Term 

A DRI Officer Retreat 

By Henry M. Sneath, DRI First Vice President 

Every great organization is characterized by dual actions: 

Preserve the core and stimulate progress. On the one hand 

it is guided by a set of core values and fundamental purpose—which 

change little or not at all over time—and on 

the other hand it stimulates progress—change, improvement, 

innovation, renewal—and all that is not part of the 

core values and purposes. Core values and core purpose 

in enduring great organizations remain fixed, while their 

operating practices, cultural norms, strategies, tactics, 

processes, structures, and methods continually change 

in response to changing realities. 

Copyright © 1999, Jim Collins. 

Somewhere during the transition period between the 

DRI presidencies of Marc Williams and current President 

Cary Hiltgen, the DRI officers decided to hold a retreat. It 

would be a chance, we decided, to focus on the basic tenets 

of what Jim Collins wrote about in the quote above— 

“preserving the core and stimulating progress.” It was a 

perfect time for such reflection. Immediate Past President 

Marc Williams had presided over a potentially tumultuous 

year, in which a variety of negative economic forces 

converged in a way that could have weakened or destroyed 

the concept of an international, non- profit lawyer organization. 

Through a series of tough but sensible decisions, 

and with a sense of long-term purpose, Marc guided DRI 

through very tough economic times. His steady hand, 

along with the hard work of the DRI staff, brought expenses 

and expectations in line with revenue. 

As Marc’s term ended, the term of Cary Hiltgen began. 

Cary made it clear that he wanted to emphasize a return 

to DRI’s core principles. With a long history of hard work, 

both in the Product Liability Committee and on the Law 

Institute, Cary had a deeply rooted sense of what made 

DRI able to withstand the pressures of economic and law 

practice change. It was a perfect time for a retreat to focus 

on this paradox of core values and change. 

DRI President- Elect Matt Cairns was charged with designing 

the retreat. His first move was to ask another past 

DRI president, Stephen Morrison, to be the facilitator for 

this two-day enclave. When we arrived at the retreat, we 

all immediately looked for power strips in which to plug 

our laptops, BlackBerries and smartphones. Matt advised 

that there would be no power strips, no power supply and 

no use of laptops, BlackBerries or PDAs. We were indeed 

going to “retreat” into two days of uninterrupted planning, 

strategic thinking, and the setting of long-term goals. 

Matt designed the retreat to focus on the concept of 

“dead ideas.” He had asked us to read the book “Tyranny 

of Dead Ideas” by Matt Miller, to inspire us not only to 

create new ideas, but to focus on ideas whose time had 

run their course. (Incidentally, Matt Miller will be speaking 

at the DRI Annual Meeting in October 2010 in San 

Diego.) It is far easier to produce new ideas, under most 

circumstances, than to identify true “dead ideas.” Mr. 

Miller’s book is politically provocative, but its greater 

importance is its teaching on how to identify “dead 

ideas.” We read the book not for its political perspective, 

but rather for its teachings on how to approach “strategic 

planning” for an organization like DRI. 

The end product of this officer retreat was a critical 

analysis of DRI’s core values and fundamental purposes, 

along with a wish list of operating practices, cultural 

norms, strategies, tactics, processes, structures, and 

methods that may need to change in response to the 

changing realities that continue to pressure DRI. In essence, 

the retreat was a reflection of those “good to great” 

principles about which Jim Collins wrote so eloquently in 

a number of well-known business publications. 

We have made a commitment to look at planning, not 

on a six-month or one-year cycle, but rather to focus on 

the continuum of our programs, policies and procedures 

over a three- to five-year or more time period. It is simply 

a commitment by the officers of DRI to focus a large part 

of the planning effort on the long-term, so that our core 

principles and values have an opportunity to triumph 

over short-term fluctuations, market pressures, practice 

area changes and other transient business pressures. It 

is a commitment to adjust the operating practices, cultural 

norms, strategies, tactics, processes, structures, 

and methods continually in response to changing realities, 

but to preserve the core values and fundamental 

purposes that we believe should change little, or not at 

all, over time. See Jim Collins, supra. 

The business of law and the economy have put innumerable 

pressures on DRI. DRI has strong core values 

and purposes that must remain fixed: 

1. Education: to teach and educate and to improve the 

skills of the defense law practitioner; 

2. Justice: to strive for improvement in the civil justice 

system; 

3. Balance: to be a counterpoint to the plaintiffs’ bar 

and seek balance in the justice system in the minds 

On The Record, continued on page 73 

For The Defense n February 2010 n 1

DRI—The Voice 

of the Defense Bar 

Vol. 52, No. 2 February 2010 

President 

Cary E. Hiltgen 

Oklahoma City, Oklahoma 

Immediate Past President Marc E. Williams 

Huntington, West Virginia 

In This Issue 

1 On The Record 

Focus on the Long Term: A DRI Officer Retreat 

By Henry M. Sneath, DRI First Vice President 

4 DRI News 

Members on the Move • DRI Calendar 

6 Affiliates in Action 

SLDOs: 2009 Wrapup, 2010 Kickoff 

President-Elect 

1st Vice President 

R. Matthew Cairns 

Concord, New Hampshire 

Henry M. Sneath 

Pittsburgh, Pennsylvania 

Celebrating 50 Years 

12 Part I: 1960–1993 

DRI and Its Presidents 

By Kile T. Turner 

2nd Vice President 

Secretary-Treasurer 

Executive Director 

Mary Massaron Ross 

Detroit, Michigan 

Charles H. Cole 

Chicago, Illinois 

John R. Kouris 

Deputy Executive Director Tyler Howes 

Editor-in-Chief 

Managing Editor 

Editor 

Production Manager 

Contributing Editor 

Advertising 

Representative 

Donald J. Hirsch 

Jay Ludlam 

Michelle Parrini 

Julia Bergerud 

Marge Motluck 

Laurie P. Mokry 

Trucking Law 

16 From the Chair 

The Time Is Now 

By Carlos Rincon 

18 Admissions of “Guilt” 

The Boomerang Effect 

of Traffic Citations 

By Brian Del Gatto 

and Michaelle Jean-Pierre 

24 Points North 

Representing a Canadian Truck Driver 

By Thomas J. Fay and Andrew B. Ranks 

29 In Search of a Fair Shake 

Bifurcation of Civil Trials 

in Trucking Cases 

By F. Marshall Wall 

and Dexter M. Campbell III 

Electronic Discovery 

34 Secondary Targets 

Extended Liability for 

Extended Loads 

By Benjamin T. Owings 

38 Behind the Curtain 

The FMCSA Medical 

Regulations Process 

By John Lomax Anderson 

and Bobbie M. Guerra 

42 A Primer 

Distracted Driving Issues 

By Chris Pearson and G. Robert Sonnier 

49 E-Trucking 

Industry Can’t Hide 

from E-Discovery 

By M. Garner Berry 

For The Defense, February 2010, Vol. 52, No. 2 (ISSN 

0015-6884). Copyright ©2010, DRI. All rights reserved. 

Published monthly by DRI, 55 West Monroe Street ~ 

Suite 2000, Chicago, Illinois 60603. Telephone: (312) 

795-1101. Fax: (312) 795-0747. 

Periodicals postage paid at Chicago, Illinois, and at 

additional mailing offices. Subscription price is $50.00 

per year, and, for DRI members, is included in the 

mem bership dues. Individual copies are $7.00 for DRI 

members and $12.00 for non-members, plus postage 

and handling. 

POSTMASTER: Send address changes to For The 

Defense, DRI, 55 West Monroe Street ~ Suite 2000, 

Chicago, Illinois 60603. 

Correspondence and manuscripts should be sent to 

the Editor. 

All views, opinions and conclusions expressed in this 

magazine are those of the authors, and do not necessarily 

reflect the opinion and/or policy of DRI and its 

leadership. 

54 From the Chair 

An Excellent Resource 

That You Can Turn To 

By Christopher V. Cotton 

56 Under the Current Rules 

E-Discovery Reform and 

Cost Reduction 


and Tiffany F. Lim 

70 Writers’ Corner 

Your Opponent’s Offending Material: Dealing with Mudslinging 

By Frank E. Noyes II 

71 Think Globally 

Be Aware, Be Prepared: The Foreign Corrupt Practices Act Goes Global 

By Gwendolyn L. Hassan 

72 Defense Ethics and Professionalism 

Beyond Bar Discipline: Why Conflicts Matter 

76 Advocates and New Members 

61 Best Practices 

Form and Manner of 

Production under FRCP34 

By Mark S. Sidoti, Scott J. Etish 

and Stephen J. Finley, Jr. 

66 A Long Engagement 

Has Information Technology 

Solved E-Discovery 

By Adam Cohen 

By Mark J. Fucile 

2 n For The Defense n February 2010

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DRI Services 

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Suite 2000 

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Phone (312) 795-1101 

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e-mail: publ-orders@dri.org 

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DRI News 

4 n For The Defense n February 2010 

Members on the Move 

Lewis Wagner is pleased to announce that Theresa 

R. Parish has been elected to the Young Professionals 

of Central Indiana (YPCI) Board of Directors. 

YPCI, founded in 2002, has become Indiana’s leading 

networking organization for young professionals. 

YPCI brings together the future business leaders 

of Central Indiana at networking, educational, and 

social events allowing attendees to establish business 

relationships that will last a lifetime. After her first 

year in law school, Ms. Parish studied at the Universidad 

de Guanajuato in Mexico and interned with the 

Agrarian Magistrate representing farmers and their 

property rights. This experience provided her with 

the diverse legal background needed to advocate for 

clients in a variety of environmental, insurance coverage 

and employment law matters. 

Christopher E. Parker has joined the Atlanta 

office of Miller & Martin, PLLC, as a member. His 

practice will continue to focus upon the representation 

of clients in labor & employment, trade secret 

and litigation matters. 

The Tennessee Commission on Continuing Legal 

Education and Specialization has certified William 

D. Domico, of Domico Kyle PLLC in Memphis, as a 

Medical Malpractice Specialist. Mr. Domico joins a 

small but select group of over 300 Tennessee attorneys 

who have completed a rigorous certification 

process required by the Tennessee Supreme Court. 

To be certified, Tennessee attorneys must have years 

of experience in their field, special education, pass an 

examination and receive positive recommendations 

from other lawyers, judges and their clients. Certified 

attorneys must also maintain $500,000 in malpractice 

insurance and complete a law practice management 

checklist each year. 

Collins & Lacy, P.C., proudly announces that Gray 

T. Culbreath has been selected to receive the 2009 

Civic Star Award of the Richland County Bar Association. 

Mr. Culbreath is the managing partner for 

Collins & Lacy. His practice focus includes product 

liability, class action, transportation, business and 

commercial litigation, and professional negligence 

claims. Additionally, he conducts an active appellate 

practice for his regional and national clients. 

Mr. Culbreath earned his undergraduate degree from 

Wofford College and his law degree from the University 

of South Carolina School of Law. 

Douglas L. Irish has been selected by his peers 

for inclusion in the 2010 edition of Best Lawyers in 

America, and was also included in the June 2009 

issue of AZ Business magazine as a “Top Lawyer” 

in ADR for his work as a neutral mediator and arbitrator. 

He recently withdrew as a senior trial partner 

and former managing partner from Lewis and 

Roca, LLP, in Phoenix and opened his professional 

corporation to offer services as a neutral mediator 

or arbitrator and as a consultant in the evaluation 

of, and strategic decision making in, disputes 

and litigation. His litigation experience includes trials, 

appeals and litigation management in Montana, 

Texas, Colorado, Louisiana, New Mexico, Nevada 

and Arizona, of complex and national/regional cases 

involving corporate, business and commercial disputes, 

class action defense, engineering/scientific 

products, pharmaceuticals, and medical devices. 

Paul J. Manion has become a fellow of the American 

College of Trial Lawyers, one of the premier legal 

associations in America. The induction ceremony 

took place in October before an audience of approximately 

974 persons during the 2009 Annual Meeting 

of the college in Boston. Founded in 1950, the 

college is composed of the best of the trial bar from 

the United States and Canada. Fellowship in the college 

is extended by invitation only to those who have 

mastered the art of advocacy and whose professional 

careers have been marked by the highest standards 

of ethical conduct, professionalism, civility and collegiality. 

Lawyers must have a minimum of 15 years 

trial experience before they can be considered for 

fellowship. 

Marge Motluck 

Diversity and Inclusion in DRI: A Statement of Principle 

DRI is the largest international membership organization of attorneys defending the interests 

of business and individuals in civil litigation. 

Diversity is a core value at DRI. Indeed, diversity is fundamental to the success of the 

organization, and we seek out and embrace the innumerable benefits and contributions that the perspectives, 

backgrounds, cultures, and life experiences a diverse membership provides. 

Inclusiveness is the chief means to increase the diversity of DRI’s membership and leadership positions. DRI’s 

members and potential leaders are often also members and leaders of other defense organizations. Accordingly, 

DRI encourages all national, state, and local defense organizations to promote diversity and inclusion in their 

membership and leadership.

Calendar 

Upcoming events 

of interest to 

DRI members and 

other defense lawyers 

For more information 

about any of these 

events, call DRI 

Customer Service at 

(312) 795-1101, 

or visit our website at 

www.dri.org. 

February 10–12 Medical Liability and Health Care Law Phoenix 

March 4–5 Strictly Retail Chicago 

March 17–19 Damages Las Vegas 

March 18–19 Toxic Torts and Environmental Law New Orleans 

March 25–26 Sharing Success—A Seminar for Women Lawyers Scottsdale, AZ 

April 7–9 Product Liability Conference Las Vegas 

April 14–16 Insurance Coverage and Claims Institute Chicago 

April 15–16 Commercial and Intellectual Property Litigation New York City 

April 22–23 Corporate Conduct: Emerging Sources of Criminal and Civil Liability London 

Across Europe for Corporations and Their Directors and Officers 

April 28–30 Life, Health, Disability and ERISA Claims Chicago 

May 6–7 Employment Law Scottsdale, AZ 

May 20–21 Drug and Medical Device Litigation San Francisco 

June 10–11 Diversity for Success Chicago 

June 17–18 Young Lawyers Miami Beach 

September 23–24 Nursing Home/ALF Litigation Chicago 

September 30– Construction Law 

Las Vegas 

October 1 

October 20–24 DRI Annual Meeting San Diego 

November 4–5 Fire and Casualty Chicago 

November 11–12 Asbestos Medicine San Diego 

November 18–19 Insurance Coverage and Practice New York City 

DRI Calendar 

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Affiliates in Action 

SLDOs: 2009 Wrapup, 2010 Kickoff 

Canada 

The Canadian Defence Lawyers (CDL) 

showed its holiday spirit with Jingle Mingle, 

a CDL initiative inviting board members 

from sister associations within the 

Greater Toronto Area to meet and mingle 

with their counterparts at the CDL on 

December 10, 2009. 

The CDL is also getting ready for a great 

Canadian winter with a lineup of events. 

The annual Defensible Positions CLE is 

scheduled for February 4 in Halifax, and 

Toronto will be the host city for the February 

11 Insurance Symposium. This spring, 

Boot Camp II will come to Halifax (March 

30) and Moncton (April 1), and Toronto 

will host a CLE focused on Accident Benefits 

(April 15), as well as the annual law 

clerks program (April 23). 

While the CDL staff and volunteers 

across the country are busy getting ready 

for upcoming CLE events, the board is getting 

ready for its annual in- person board 

meeting, which will take place in Toronto 

on February 2, 2010. 

CDL is also pleased to welcome three 

new members to its board of directors: 

David Graves, from Halifax, and two new 

members from the Toronto area, Glenn 

Smith and Jim Davidson, all of whom are 

well known in their areas of practice. CDL 

looks forward to benefiting from their experience, 

wisdom and fresh ideas. 

Connecticut 

The Connecticut Defense Lawyers Association 

(CDLA) held its Fall Meeting on Monday, 

November 23, 2009, at the Four Points 

by Sheraton in Meriden, Connecticut. The 

guest speaker was DRI Secretary- Treasurer 

Charles H. Cole, shareholder and board 

member of Schuyler, Roche & Crisham in 

Chicago. Mr. Cole’s topic was “Understanding 

Online Social Networking: Facebook, 

Twitter and Linked In—Now What” The 

presentation was extremely helpful to the 

CDLA board and membership and showed 

them the pros and cons of networking sites, 

including Facebook, Twitter and LinkedIn, 

as well as blogging. 

The CDLA Holiday Party was held on 


DRI Secretary- 

Treasurer 

Charles H. 

Cole addresses 

Connecticut 

Defense Lawyers 

Association 

Fall Meeting 

attendees. 

December 7, 2009, at the Crowne Plaza 

Hotel in Cromwell. All CDLA past presidents 

were invited to join the membership 

to celebrate the season. A great time was 

had by all. 

The CDLA Employment Law Committee, 

chaired by Michael Soltis of Jackson 

Lewis, has been meeting in preparation for 

an Employment Law Symposium to be held 

sometime in early 2010. This is CDLA’s first 

substantive law committee, and the board 

looks forward to its presentation. The Trial 

Tactics Committee, chaired by board members 

Rob Sickinger of Milano & Wanat and 

Rob Chomiak of Nuzzo & Roberts, has also 

been busy preparing for the series of “Lions 

of the Bar” seminars to be held in January, 

February and March of 2010. 

Indiana 

A. Richard Blaiklock, a partner in the Indianapolis 

firm of Lewis Wagner, and Mark 

A. Holloway, a partner in the Indianapolis 

firm of Stephenson Morow & Semler, 

have been named co- recipients of the 2009 

Defense Trial Counsel of Indiana (DTCI) 

Defense Lawyer of the Year award. The 

award is presented to a licensed lawyer 

who, in the opinion of the Awards Committee 

and as approved by the DTCI board, 

has promoted the interests of the Indiana 

defense bar, since the last annual meeting 

of the DTCI, in a most significant way in the 

fields of litigation, legislation, publication 

or participation in local, state or national 

defense organizations. 

The DTCI also installed as diplomates 

two members of the Indiana bar who, in 

the judgment of the officers and directors 

of the DTCI, have distinguished themselves 

throughout their careers through 

outstanding contributions to the representation 

of clients in the defense of litigation 

matters. The 2009 recipients are Michael E. 

Brown, partner in the Indianapolis firm of 

Kightlinger & Gray and Thomas C. Hays, 

partner in the Indianapolis firm of Lewis 

Wagner. 

The DTCI Outstanding Young Lawyer 

award is presented to a member of the organization, 

less than 35 years old, who has 

shown leadership qualities in service to the 

Indiana defense bar, the national defense 

bar, or the community. The 2009 recipient 

is Kori L. McOmber with Schultz & Pogue 

in Indianapolis. 

The recipients were recognized at the 

association’s Sixteenth Annual Meeting & 

Conference in Bloomington, Indiana, on 

November 19–20, where DTCI also named 

its 2010 officers. The officers began their 

terms January 1, 2010. 

Mary K. Reeder of the Indianapolis firm 

of Riley, Bennett, & Egloff was named the 

43rd president; Scott M. Kyrouac of the 

Terre Haute firm of Wilkinson, Goeller, 

Modesitt, Wilkinson & Drummy was 

named president- elect; Lonnie D. Johnson 

of Mallor Clendening Gordner & Bohrer 

in Bloomington was tapped to be vice- - 

president; Jerry E. Huelat, Huelat Mack 

& Kreppein in Michigan City was named 

secretary of the association; and James D. 

Johnson of Rudolph Fine Porter & Johnson 

in Evansville was chosen treasurer. 

Thomas Schultz of the Indianapolis firm 

of Schultz & Pogue will continue on the 

board as immediate past president and will 

begin his duties as DRI state representative 

for Indiana. 

Kentucky 

The 2009 Kentucky Defense Counsel 

(KDC) Fall Seminar was held on Friday, 

October 2 at the Marriott Griffin Gate 

Resort & Spa in Lexington, Kentucky, with 

approximately 50 attorneys in attendance. 

This year’s seminar was chaired by Jonathan 

Duncan Pitchford of Whitlow, Roberts, 

Houston & Straub, PLLC, in Paducah, 

Kentucky. 

In addition, the KDC will also serve 

as the host state for the 2010 DRI South-


New York 

The annual meeting of the Defense Trial 

Lawyers Association of Western New York 

(DTLWNY) was held December 9, 2009, 

from 5:30 to 7:30 at The Buffalo Chophouse. 

At the meeting, trial lawyer James 

P. Burgio was honored with the Robert M. 

Kiebala Memorial Award to recognize him 

as the 2009 Defense Trial Lawyer of the 

Year. This award is presented to an attorney 

who best exemplifies the association’s misern 

Regional meeting. DRI Kentucky State 

Representative Kate Molloy has announced 

that the meeting will be held at the Marriott 

World Center, Orlando, Florida, June 10–13, 

2010. A golf tournament has been scheduled 

for Friday, June 11 at Hawk’s Landing. 

More information will be forthcoming. 

Michigan 

Hal O. Carroll, of the Troy law firm Vandeveer 

Garzia, P.C., received the Michigan 

Defense Trial Counsel’s (MDTC) President’s 

Special Recognition Award on November 5, 

2009. The award was presented at MDTC’s 

annual gathering of past presidents at the 

Troy Marriott, also attended by current 

officers, the board of directors, section 

chairs and regional chairs from the organization. 

MDTC’s current president, J. Steven 

Johnson, presented the award to Mr. 

Carroll in recognition of his commitment 

to the organization—specifically his work 

as editor of Michigan Defense Quarterly. 

Serving as editor since 2000, Mr. Carroll 

has personally produced no less than four 

issues each year of Michigan’s best-known 

civil defense professional journal. 

On November 6, 2009, the MDTC held 

its Winter Meeting in Troy. The theme 

of the meeting was “Emerging Issues in 

Commercial Litigation.” Topics included 

“Hot Topics in Arbitration,” “E- Discovery,” 

“Contractual Issues in Commercial Litigation,” 

“Use of Experts in Commercial 

Litigation” and “Trends in Commercial 

Litigation—A View from the Bench.” The 

2009 Respected Advocate Awards were presented 

to William F. Mills and William W. 

Jack at a luncheon, which featured keynote 

speaker Justice Robert P. Young, Jr., from 

the Michigan Supreme Court. 

Minnesota 

On October 22, 2009, following its regularly 

scheduled board of directors meeting, 

the Minnesota Defense Lawyers Association 

(MDLA) held its annual Judges 

Dinner at the Tria Restaurant in North 

Oaks, Minnesota. Chief judges from various 

state courts were invited to attend, 

in addition to the entire MDLA board of 

directors and all substantive law committee 

chairpersons. This year, the event was 

well attended. Short presentations regarding 

the highlights of 2009 and 

plans for 2010 were given by each 

judge in attendance. The honored 

guests included Minnesota 

Supreme Court Chief Justice, 

Eric J. Magnuson; Minnesota 

Court of Appeals Chief Judge 

Edward Toussaint Jr.; Workers’ 

Compensation Court of Appeals 

Judge William Johnson; Ramsey 

County Chief Judge Kathleen 

Gearin; Stearns County Assistant 

Chief Judge John Scherer; 

Hennepin County Court Judge 

Mary Steenson DuFresne; and 

Ramsey County Court Judge 

Dale Lindman. 

On October 29, 2009, the 

MDLA New Lawyers Committee 

held its Annual Fall Kick-off at the Local 

Irish Pub in Minneapolis. This annual 

event provides good food and beverage and 

allows networking among MDLA new lawyers 

(practicing less than eight years) and 

new lawyers who have not yet joined the 

MDLA, as well as law school students. This 

year, MDLA’s substantive law committee 

chairpersons attended the event to provide 

brief overviews of the various committees 

and other valuable opportunities available 

to new lawyers through the MDLA. 

MDLA Program Coordinator Lisa 

Griebel, shareholder with the Minneapolis 

law firm of Terhaar Archibald Pfefferle 

and Griebel, has completed her agenda for 

the 45th Annual Mid- Winter Conference to 

be held on February 5–7, 2010, in Brainerd, 

Minnesota. This year’s educational program 

includes top-notch presenters, speaking 

on hot topics of immediate interest. 

Mississippi 

The Mississippi Defense Lawyers Association 

(MDLA) will hold its Annual Membership 

Meeting and Luncheon on January 

30, 2010, at the Country Club of Jackson. 

United States Court of Appeals Judge E. 

United States Court of 

Appeals Judge E. Grady 

Jolly will speak at the Mississippi 

Defense Lawyers 

Association Annual 

Membership Meeting and 

Luncheon. 

The Young 

Lawyers’ 

Division of the 

Mississippi 

Defense 

Lawyers 

Association 

participates 

in a Stewpot 

Community 

Services 

benefit in 

Jackson, 

Mississippi. 

Grady Jolly has graciously agreed to be 

the guest luncheon speaker. The board of 

directors will meet just prior to the luncheon 

to review the 2009 programs and to 

approve nominations for the 2010 board of 

directors. 

In an effort to kick off the holiday season, 

the Young Lawyers’ Division of the MDLA 

recently participated in a service project 

benefiting Stewpot Community Services 

in Jackson, Mississippi. These young lawyers 

collected and delivered truckloads 

of canned goods to Stewpot on November 

20, 2009, right before Thanksgiving. 

MDLA sends a special thank you to Michele 

McCain for organizing this program and 

to all participating law firms who collected 

food and opened their offices as drop off 

locations for additional collections. 

The MDLA is pleased to announce that 

past president James D. Holland has been 

selected as the DRI Southern Regional Director. 

Mr. Holland is very excited and has 

great plans for the future of this region. 



Higgins & Tongue LLP, Dan Schanz 

of Spooner & Much PC, Heidi Mandt 

of Schwabe Williamson & Wyatt PC, 

Sam Sandmire of Ater Wynne LLP, 

Greg Lusby of Arnold Gallagher Saydack 

Percell Roberts & Potter and Dan 

Skerritt of Tonkon Torp LLP. 

OADC’s annual Fall Seminar took place 

at the beginning of November. Chairs for 

the seminar were Mr. Talcott and Susan 

Marmaduke of Harrang Long Gary Rudnick 

PC. The program included an update 

on the 2009 session of the Oregon legislature, 

tips for arbitrations, settlement 

negotiations and electronic discovery, 

information about recent appellate decisions 

and a discussion of diminished value 

cases. This year’s featured lunch speaker 

was Oregon Supreme Court Justice W. 

Michael “Mick” Gillette. 

Ohio Association of Civil Trial Attorneys then-President Gretchen Koehler Mote (from left), Excellence 

in Advocacy award recipient Ronald Rispo, DRI Board of Directors member James L. 

McCrystal, Jr., Distinguished Contributions to the Community award recipient Carter R. Strang, 

2009 Committee Chair of the Year Kurt D. Anderson and Respected Advocate award recipient 

Paul O. Scott. 

sion of “promoting the highest standard of 

trial conduct through member education 

and advocating the defense position in civil 

cases with the judiciary and where appropriate 

in the New York State legislature.” 

The DTLWNY announced that the 2010 

officers will be Hilary Banker, president; 

Nelson E. Schule, vice president; Bill Nitterauer, 

treasurer; and Walter Pacer, secretary. 

David Adams, immediate past 

president, will serve on the board in an 

emeritus position. The new board members 

will be Kelly Philips, Joseph Goergen 

and Carl Brownell, and committee leadership 

appointments included Michelle 

Parker, Nominating Committee Chair; Dan 

Archilla, Membership Chair; Nicole Heary 

and Bill Christ, Education Co-Chairs; and 

Gerard E. O’Connor, Events Chair. 

Ohio 

The Ohio Association of Civil Trial Attorneys 

(OACTA) held its annual meeting 

on November 12–13, 2009, at the Westin 

Hotel in Columbus, Ohio. Highlights of the 

event included 8.50 hours of CLE, including 

a DRI- sponsored speaker; the annual 

awards luncheon; a networking reception 

at the Ohio Statehouse; and the election of 

officers. 

John Hands was elected the new OACTA 

president, succeeding Gretchen Koehler 


Mote, who became immediate past president. 

Gary Grubler is now OACTA vice 

president, and Kevin Connell and Kurt 

Anderson are treasurer and secretary, 

respectively. Elected to the Board of Trustees 

were Thomas J. Antonini, Anthony 

Brown, Richard M. Garner, John J. Garvey, 

Brian D. Kerns, James N. Kline, Michael 

W. Krumholtz, James L. Mann, Amy Mass, 

Mark F. McCarthy, Paul McCartney, David 

W. Peck, Crystal Richie, Anne Marie Sferra 

and Brian Wildermuth. 

Oregon 

In October, the Oregon Association of 

Defense Counsel (OADC) board of directors 

held its annual planning retreat 

at the Red Rock Resort in Las Vegas. 

In attendance were OADC President 

Julie Elkins of Zipse Elkins & Mitchell, 

OADC President- Elect Drake 

Hood of Brisbee & Stockton LLC, 

OADC Secretary/Treasurer Jeanne 

Loftis of Bullivant Houser Bailey PC, 

and OADC board members Lindsey 

Hughes of Keating Jones Hughes PC, 

Brian Talcott of Dunn Carney Allen 

Rhode Island 

On November 12, 2009, Defense Counsel 

of Rhode Island sponsored a CLE course, 

“The Common Interest Privilege and Joint 

Defense Agreements: Policies, Parameters 

and Pitfalls.” The presenter was John 

F. Kelleher, from Higgins, Cavanagh & 

Cooney, Providence, Rhode Island. The 

seminar, which provided two ethics credits, 

examined the policies underlying 

this extension of the work- product and 

attorneyclient privileges. It explored the 

use of joint defense agreements as a means 

of defining appropriate and agreed upon 

exit strategies to allow attorneys to properly 

protect their clients’ interests while avoiding 

potential conflicts of interest. 

South Carolina 

Catherine Templeton, Of Counsel at Ogletree 

Deakins, and a member of the South 

Carolina Defense Trial Attorneys’ Associ- 

Catherine Templeton, South Carolina Defense Trial 

Attorneys’ Association executive committee member 

(from left), Justice Sandra Day O’Connor and Molly 

Craig, SCDTAA treasurer.


ation (SCDTAA) executive committee, and 

Molly Craig, a partner at The Hood Law 

Firm and SCDTAA treasurer, will serve as 

South Carolina Coordinators for the Our 

Courts project. 

On October 1, 2009, Justice Sandra Day 

O’Connor visited Charleston, South Carolina, 

to kick off the statewide pilot program 

for Our Courts. She met with over 300 students, 

administrators, and teachers to emphasize 

the importance of a relevant civics 

education. The vision of Justice O’Connor, 

Our Courts is a web-based education project 

designed to reinvigorate civics teaching and 

learning. Our Courts provides free lesson 

plans, interactive modules, and games designed 

specifically for use in middle school 

classrooms. With these tools, Our Courts 

will help empower the first generation of 

“digital natives” to become knowledgeable 

civic participants and leaders. 

On the Our Courts website, students learn 

about the judicial branch of government by 

playing interactive computer games, and 

teachers have free access to lesson plans 

and quizzes covering a wide range of civics 

topics. These resources were designed 

in partnership with Georgetown Law and 

Arizona State University, by experts in the 

fields of law, education, and technology, 

such as James Paul Gee, the leading theorist 

on video games and learning. 

South Carolina has convened a board 

to oversee the practical implementation of 

the Our Courts program into the schools. 

By involving the South Carolina Department 

of Education, Social Studies Administrators, 

and the state bar, Ms. Templeton 

and Ms. Craig were able to draw from the 

education and legal resources throughout 

the entire state. Currently, several school 

districts are implementing a pilot program 

in which the Our Courts curriculum 

is taught in the classrooms, lawyers act as 

guest speakers, and the students compete 

against each other using the Our Courts’ 

games. The winning classes, students, and 

district are rewarded with everything from 

pizza parties to a meeting with SC Supreme 

Court Chief Justice Jean Toal. 

The South Carolina event and pilot program 

are a starting point for Our Courts’ 

state-by-state strategy to encourage 

adoption nationwide. During her visit to 

Charleston, Justice O’Connor invited South 

Carolina Supreme Court Chief Justice Jean 

Hoefer Toal to act as the South 

Carolina Spokesperson for Our 

Courts. Chief Justice Toal is the 

Immediate Past President of 

the Conference of Chief Justices 

and has contacted her counterparts 

in all 50 states about the 

opportunity to get involved in 

this project. The International 

Association of Defense Counsel 

(IADC) is proud to announce 

its support and partnership 

with Justice O’Connor and Our 

Courts to coordinate this collaboration 

nationally. Justice 

O’Connor will speak about Our 

Courts for the IADC Foundation 

Forum at the IADC Midyear 

Meeting in February. 

To find out more about the 

resource, simply go to www.OurCourts.org. 

Our Courts is looking for volunteers in 

every state. To get involved with fellow 

members of the bar in your state, contact 

Catherine Templeton at Catherine.Templeton@ 

OgletreeDeakins.com or Molly Craig at Molly. 

Craig@hoodlaw.com. 

The 42nd Annual Meeting of the 

SCDTAA was held on November 5–8, 2009, 

at the Westin Savannah Harbor Resort 

in Savannah, Georgia, where members of 

the SCDTAA joined with members of the 

federal and South Carolina judiciary for 

education programs, recreation and social 

activities. The meeting provided participants 

with the opportunity to learn from 

and socialize with South Carolina’s defense 

bar leaders and members of the judiciary. 

Also, this year, the gubernatorial candidates 

for South Carolina joined members, 

judges and their guests for dinner and 

a panel discussion about South Carolina 

under its next governor. 

New SCDTAA officers installed at the 

Annual Meeting for 2009–2010 were David 

Rheney, president; Gray Culbreath, vice 

president; Molly Craig, treasurer; and Sterling 

Davies, secretary. 

Thomas Williams, past member of the DRI Board of Directors, 

with wife, Connie, at the the Tennessee Defense Lawyers 

Association Fall Meeting. 

Tennessee 

The 2009 Tennessee Defense Lawyers 

Association (TDLA) Fall Meeting and Seminar 

was held October 22–24 at the Marriott 

Griffin Gate Resort & Spa, Lexington, 

Kentucky. The meeting included the election 

of new officers (voted on by past presidents) 

for 2009–2010. Stephen P. Miller of 

Memphis is the new TDLA President with 

C. Douglas Dooley of Chattanooga assuming 

the office of Immediate Past President. 

Melanie S. Stewart of Memphis is TDLA 

President Elect and Robert A. Crawford of 

Knoxville is the organization’s Secretary- 

Treasurer. Additionally, John W. Barringer, 

Jr., Catherine E. Dugan and James H. 

Tucker, Jr., all of Nashville, will serve on the 

board of directors as vice presidents, and D. 

Scott Bennett of Chattanooga, Sarah Hardi- 

DRI Southern Region Director James D. Holland 

addresses the Tennessee Defense Lawyers 

Association. 



Virginia Association of Defense Attorneys recipient of the Excellence 

in Civil Litigation Award, Colin J.S. “Cal” Thomas, Jr. (left), with past 

VADA president Frank B. “Bunky” Miller III. 

son Reisner of Nashville, and Bradford D. 

Box of Jackson are new directors. 

TDLA has also started its first-ever student 

chapter, in affiliation with the law 

school at University of Memphis, and is 

currently working to get the “TDLA Cecil 

C. Humphreys Chapter” recognized as an 

official student organization through the 

University of Memphis. Forty-four law students 

have signed up, and plans are already 

underway to have a chief justice speak in 

the spring of 2010 to this group. Members 

of the chapter will be provided with the 

opportunity to shadow at law firms in the 

Memphis area. 

Texas 

DRI and the Texas Association of Defense 

Counsel (TADC) would like to congratulate 

David M. Davis, this year’s recipient of the 

Austin Bar Foundation’s prestigious David 

H. Walter Community Excellence Award. 

The award is presented by the Austin Bar 

Foundation once a year to one Austin Bar 

member who has made a significant impact 

in the community, and at the same time, 

has raised the profile of the profession. Mr. 

Davis, a past member of DRI’s Board of 

Directors and a partner with Davis & Wilkerson 

in Austin, is the sixth recipient of this 

coveted award. 

TADC began its 50th year of service to 

the civil justice system with its first meeting 

of the 2009–2010 board of directors in mid- 

November in McKinney. President Greg W. 

Curry, with Thompson 

& Knight LLP, called 

the meeting to order. 

The TADC continues 

to be actively involved 

in the administration 

of justice through its 

Amicus Curiae Committee. 

The committee, 

chaired by Roger 

W. Hughes with Adams 

& Graham, L.L.P., 

has been extremely 

active in the past year, 

authoring numerous 

briefs on behalf of 

the TADC. In the past 

quarter, the committee 

has authored four 

briefs and has authorized 

the submission of a fifth. 

TADC President- Elect Keith O’Connell, 

with O’Connell & Benjamin, L.L.P., has 

represented the association as a member 

of the Supreme Court Equal Access to Civil 

Justice Task Force. The TADC has participated 

in pro bono activities for the past 

several years with the Houston Bar Association 

and corporate counsel groups and 

plans to continue these activities in other 

cities around Texas in the coming year. A 

“plan of action” has been submitted to the 

Supreme Court Task Force outlining the 

association’s commitment to the goals of 

the committee. 

The TADC will have numerous seminars 

and programs in 2010, beginning with 

its Winter Seminar in late January at the 

Vail Cascade Resort in Vail, Colorado, and 

culminating with the 2010 Annual Meeting 

and 50th Anniversary Celebration in 

late September at the Hyatt Hill Country 

Resort in San Antonio. President Curry has 

appointed a special 50th Anniversary Committee, 

consisting of longtime members 

and past presidents and chaired by Executive 

Vice President Thomas E. Ganucheau 

with Beck, Redden & Secrest, L.L.P. The 

committee has been working on programming 

and special events for the Annual 

Meeting, including tag lines, slogans and 

special publications. 

Virginia 

The Virginia Association of Defense Attorneys 

(VADA) held its annual meeting and 

convention in Chantilly, Virginia, on October 

28–30. More than 225 attorneys, judges 

and guests gathered for CLE, socializing 

and honoring their own. 

Although covering a broad range of 

defense topics, the program spotlighted the 

new substantive law section, Professional 

Liability, which is chaired by Julie Palmer 

of Harman Claytor Corrigan & Wellman in 

Richmond. In addition, there were many 

quick, 20-minute “bullets” covering everything 

defense attorneys should know about 

topics often alien to their practices. These 

included everything they should know 

about criminal law, bankruptcy, workers’ 

compensation, local government and federal 

court removal. The general session 

on Medicare Set-Asides, presented by Roy 

Franco of the Medicare Advocacy Recovery 

Coalition and Kari Lou Frank of PennStuart, 

was so successful that it continued long 

after its scheduled time allotment. 

At the annual awards luncheon, the 

VADA bestowed the Excellence in Civil Litigation 

Award on Colin J.S. “Cal” Thomas, 

Jr., for his many years of service to the 

defense bar and to civility in the practice of 

law. Mr. Thomas is a partner in the Staunton 

firm of Timberlake Smith Thomas & 

Moses. 

New officers and directors were also 

elected. Marshall H. Ross of the Harrisonburg 

firm of Wharton Aldhizer & Weaver 

was installed as president. Dennis J. Quinn 

of the Washington D.C., firm of Carr Maloney 

was named president- elect. Lisa Frisina 

Clement of PennStuart in Richmond was 

named treasurer of the association, and 

Glen A. Huff, Huff Poole & Mahoney in Virginia 

Beach was chosen secretary. Stanley 

P. Wellman of Harman Claytor Corrigan & 

Wellman in Richmond will continue on the 

board as immediate past president. 

Newly named to the board of directors 

are Guy M. Harbert III, Gentry Locke 

Rakes & Moore, Roanoke; Elisabeth Manuel, 

Morin & Barkley, Charlottesville; and 

Roy M. Jessee, Mullins Harris & Jessee, 

Norton. Heather K. Bardot, partner in the 

Fairfax firm of Trichilo Bancroft McGavin 

Horvath & Judkins, is the new DRI representative 

for Virginia, and Elizabeth 

A. Francis, associate with Carr Maloney, 

is the new chair of the Young Lawyers 

Division. 



Part I: 1960–1993 

DRI and Its 

Presidents 

By Kile T. Turner 

Stanley Morris probably had no idea what he was getting himself 

into when he agreed to become the first president of a new 

organization of insurance lawyers who believed they needed to 

respond to the gains made by the National Association of 

Claimants Compensation Attorneys in the 1950s. 

On July 6, 1960, at the International Association 

of Insurance Counsel’s annual meeting in Atlantic 

City, the Defense Research Institute (hereinafter 

“DRI”) was born with $15,000.00 of “seed 

money.” Articles of Incorporation were filed 

on August 30, 1960, in Wisconsin. Without the 

use of fax, email, or conference calls, Mr. Morris 

charted the course for DRI’s first year. I doubt 

Mr. Morris could have envisioned what DRI 

would become by the time another lawyer from 

West Virginia would ascend to the presidency of 

DRI, 49 years later. (For those with short memories, 

DRI’s Immediate 

Past President 

Marc E. Williams 

also hails from the 

Mountain State.) 

The people who served between Morris and 

Williams, 49 lawyers from 24 different states, can 

reflect with pride on the challenges and accomplishments 

each has faced. When reflecting on 

our first 50 years, one thing stands clear—DRI 

has a remarkable track record of exceptional 

leadership. The reason for this is equally clear— 

a membership that consists of the best and most 

committed leaders in the defense bar. Stanley 

Morris’s efforts paid off—by the time his successor, 

Lewis Ryan from Syracuse, New York, 

completed his tenure, DRI had a membership 

of 2,000 practicing attorneys and 180 insurance 

companies. 

It was during the tenure of Josh Groce, DRI’s 

third president (1961–1964), that DRI hired Marquette 

University Law School professor James 

Ghiardi as research director. This decision was 

Stanley C. Morris 

(1960) 

Lewis C. Ryan 

(1961) 

Josh H. Groce 

(1961–64) 

n Kile T. Turner is a member of Norman Wood Kendrick & Turner in Birmingham, Alabama. Mr. Turner has served as Chair of DRI’s 

Young Lawyers Committee and was a member of DRI’s 2003 Annual Meeting Steering Committee. He is also a member of the FDCC. 

The author relied heavily on Dave Ream’s excellent work, A History of DRI, which can be downloaded for free at www.dri.org, and recommends 

that all DRI members read this interesting book to fully appreciate the vision and work of the leaders of this great organization. 


YEARS 

50 CELEBRATING 

LEADERSHIP ■ EXCELLENCE ■ EDUCATION 

William E. Knepper 

(1965) 

Merritt Lane, Jr. 

(1966) 

John M. Moelmann 

(1966–68) 

Thomas A. Ford 

(1969–70) 

Willis Smith, Jr. 

(1971) 

Reid A. Curtis 

(1972) 

Edward F. 

Seitzinger (1973) 

instrumental in fulfilling DRI’s goals of 

improving defense lawyers’ skills through 

education and information. Mr. Groce’s 

three and a half years as DRI president distinguishes 

him as the longest- serving president 

in the history of DRI. 

William Knepper, hailing from Columbus, 

Ohio, followed Mr. Groce as president 

in 1966. He was the first of six Buckeye 

lawyers to lead DRI. He was also the last of 

the original Board of Directors to serve as 

president. 

Merritt Lane, Jr., served as president 

in 1965, and ultimately became an appellate 

judge in New Jersey. He was followed 

by John R. Moelmann (1966–68), who was 

known to handle many cases in front of the 

Seventh Circuit Court of Appeals. President 

Moelmann even handled a rare injunction 

hearing in front of the U.S. Supreme Court. 

By the end of Thomas A. Ford’s tenure 

in 1970, DRI boasted a membership of 

5,451 individual members, 241 insurance 

companies, and 126 other corporations as 

members. Mr. Ford also represented DRI 

in 1969 at the first national conference of 

defense bar leaders. The conference continued 

for 25 years until it was subsumed 

within DRI’s Annual Meeting. 

Willis Smith, Jr., became the first president 

from Raleigh, North Carolina, in 

1971, but he would not be last. (Richard 

Boyette served with distinction in 2005). 

That year, DRI held its first Product Liability 

Conference. The son of a senator, 

Mr. Smith died tragically when his single 

engine Cessna collided mid-air with a commercial 

airliner. 

Reid Curtis, known for his legendary 

courtroom skills, became DRI’s ninth president 

in 1971, and the third president from 

New York. Mr. Curtis was followed by Edward 

F. Seitzinger of Des Moines, Iowa in 

1973. The Iowa Dense Counsel Association 

awards the Edward Seitzinger Award annually 

to a board member who has made 

exceptional contributions and meritorious 

service to the association. Rudolph A. Janata 

of Columbus, Ohio, became president 

in 1974 and is the namesake for the Janata 

Award, which is presented each year by 

DRI to an outstanding SLDO that has undertaken 

an innovative or unique program 

contributing to the goals and objectives of 

the organized defense bar. Mr. Janata would 

be proud to know that his own Ohio Association 

of Civil Trial Attorneys was the first 

recipient of the award in 1989. 

DRI celebrated its 15th anniversary with 

Paul Brock as its president. Mr. Brock is the 

only DRI president to have an Inn of Court 

named after him. The Paul Brock Inn of 

Court is located in his hometown of Mobile, 

Alabama. William Wallace, a great litigator, 

led DRI as the nation celebrated the country’s 

bicentennial. Case Western Reserve 

School of Law awards the William Wallace 

Litigation Award each year to the student 

with the best courtroom skills in his or her 

class. DRI finally had a “Philadelphia lawyer” 

as president in 1977 when Daniel Ryan 

took over. Thomas Weithers succeeded Mr. 

Ryan. Following Mr. Weithers’ untimely 

death, DRI donated $50,000.00 to DePaul 

University College of Law to endow a scholarship 

at his alma mater in 1985. As a result, 

the scholarship continues to provide assistance 

to deserving law students. 

Burton Johnson, DRI president in 1979, 

appeared before a congressional subcommittee 

arguing that each state and not the 

federal government should decide whether 

to adopt no fault auto insurance legislation. 

Mr. Johnson was effective in working 

closely with SLDOs from Arkansas, Louisiana, 

Texas, Oklahoma and New Mexico to 

defeat the federal no fault legislation. 

As DRI entered the 1980s, President 

John M. Dinse declared that the organization 

had reached “adulthood.” Of particular 

pride was that DRI had weighed in on 

national issues such as auto no fault, and 

had developed outstanding publications 

and seminars for its members. 

In 1981, under Fred Seivert, Jr.’s leadership, 

DRI produced a monograph entitled 

Rudolph A. Janata 

(1974) 

Paul W. Brock 

(1975) 

William H. Wallace 

(1976) 

Daniel J. Ryan 

(1977) 

Thomas J. 

Weithers, Jr. (1978) 

Burton J. Johnson 

(1979) 

John M. Dinse 

(1980) 



Fred H. Sievert, Jr. 

(1981) 

Joseph A. 

Sherman (1982) 

Robert C. Maynard 

(1983) 

William T. 

Birmingham (1984) 

Edward W. Mullins, 

Jr. (1985) 

Ernest B. Lageson 

(1986) 

Donald F. Pierce 

(1987) 

“Administration of Civil Justice, Position 

Paper.” This comprehensive document 

became the framework for DRI’s action. 

In 1989, DRI established the Fred H. Seivert 

Award, which is presented annually to 

an outstanding defense bar leader who, like 

Mr. Seivert, made significant contributions 

towards achieving the goals of the organized 

defense bar. 

By the time Joseph Sherman took over 

in 1982, DRI boasted a membership of over 

10,000. Reflecting the momentum that DRI 

sustained for two decades, 1983 president 

Robert C. Maynard stated: 

In taking stock of where we are, one cannot 

help but conclude that the decade 

of the 1980s will be a significant turning 

point for DRI. With a new executive 

director, a new research director, a new 

home, and a secure membership base, 

one has a sense that the organization is 

poised to make a significant impact on 

the world around us. It remains for us 

to widen our sphere of influence to the 

counsels where public policy is made. 

Interestingly, the issue of whether DRI 

should change its name has been discussed 

more than once. President Maynard proposed 

“DRI—An Association of Defense 

Trial Attorneys.” However, no action was 

taken, and more than 25 years later, the 

name remains the same. 

In 1984, President William T. Birmingham 

presided over DRI’s move from Milwaukee 

to Chicago and a Northwestern 

University Law School building (primarily 

occupied by the ABA). The following year, 

Edward Mullins became the first of three 

presidents from his firm (the firm now 

boasts four past presidents). 

DRI continued to grow in the 1980s, and 

one result was a desire for more autonomy 

from the IADC. A comprehensive discussion 

of DRI’s move to become a stand-alone organization 

is better saved for another article. 

It is worth noting that several past and 

(at the time) future DRI presidents were instrumental 

in bringing the change. President 

Ernest Lageson appointed a Structures Committee 

in 1986 to study the DRI governing 

structure and how to make it autonomous 

from the other defense organizations. The 

committee was chaired by then- President- 

Elect Donald Pierce (President, 1987), and 

future presidents James “Jimmy” Morris 

(1988) and Duffield Smith (1989) were also 

involved. As Mr. Lageson later recalled: 

My goal as president was to strengthen 

DRI as a national spokesman for the 

defense bar. It was my desire to unite 

defense lawyers around the country, 

with DRI as their national leader… I 

envisioned DRI as the organization that 

was called on by the media, legislative 

bodies, or outside organizations, to represent 

and express the interest of defense 

lawyers on a national scale. While the 

state and local defense could speak for 

their members within their own state, 

DRI would speak for the defense nationally. 

I feel that my major contribution 

to DRI during my year as president was 

to put DRI on the path to becoming 

an autonomous organization, free from 

control of the IADC. 

DRI was fortunate to have the strong 

leadership during the campaign that was 

necessary to become a stand-alone organization. 

At the forefront was Archie Robinson 

(1990), with the help of past- presidents 

Morris and Thomas Crisham (1989), plus 

future presidents Robert Monnin (1991), 

Stephen Paris (1992) and Claude Smart, Jr. 

(1993). Although strong opinions existed 

on both sides of the issue, President Morris 

described the separation as “measured, 

reasonably non- confrontational, with rational 

discourse.” This statement reflects the 

class, strength, and vision of our leaders at 

that pivotal time in DRI’s history. 

And, of course, DRI’s pool of remarkable 

leadership would not dry up in 1993. Look 

for Part II of the history of DRI’s highest 

office to follow in the March 2010 issue of 

For The Defense as we continue to celebrate 

DRI’s 50th birthday. 

James W. Morris III 

(1988) 

G. Duffield Smith, 

Jr. (1989) 

Thomas M. 

Crisham (1989) 

Archie S. Robinson 

(1990) 

Robert D. Monnin 

(1991) 

Stephen J. Paris 

(1992) 

Claude H. Smart, 

Jr. (1993) 


Trucking Law 

From the Chair 

The Time Is Now 

By Carlos Rincon 

Get involved 

and leadership 

opportunities 

will follow! 

n Carlos Rincon is a partner in Rincon Mounts PC in El Paso, Texas. Mr. Rincon is board certified 

in personal injury trial law by the Texas Board of Legal Specialization. He is a trial lawyer 

defending catastrophic and serious injury trucking and product liability claims on behalf of 

national trucking carriers and automobile manufacturers, plus the railroad and trucking industries, 

and has done extensive pharmaceutical defense work primarily in the area of diet drugs. 


At a moment when this nation’s trucking industry— 

carriers and drivers alike—is facing implementation 

of heightened safety monitoring, and as we begin the 

exodus from a turbulent economic time that saw, within 

the industry, unprecedented levels of 

untapped capacity and necessity of preserving 

resources, there has never been 

greater need for aggressive, cutting-edge 

and innovative approaches to tackling the 

legal issues confronting our clients. This 

segment of the For The Defense comes at 

an opportune time to have a conversation 

on some of those key issues, and the DRI 

Trucking Law Committee—your committee—welcomes 

the opportunity to showcase 

its ability to facilitate education of the 

legal profession and our client constituency 

in the way DRI knows how—through 

insightful scholarship and practical knowhow 

on various facets of pressing issues. 

Thanks to the authors of each of the following 

articles for their efforts, and congratulations 

on a job well done! A special 

thanks, as well, to our committee’s publications 

chair, Tony Campo, of Boyle Morrissey 

& Campo in Boston, for his efforts in 

coordinating this fine collection, in which I 

am confident that you will find much interest 

and value. 

In addition to our committee’s tremendous 

literary abilities, take note of the successful 

completion of the Trucking Law 

Seminar this month in Las Vegas. As we 

begin a new decade, we recall the last one, 

when our seminar programming took root 

and the DRI Trucking Law Committee 

truly began to make its mark on the trucking 

industry landscape. Since our initial 

stand-alone conference in St. Louis in 2002, 

the committee has come a long way. 

And the key to all of our successes has 

been the unyielding support and help from 

you, the committee membership. Many of 

you have authored publications, spoken at 

conferences, planned live or webcast programming, 

recruited new members and 

labored to make the committee a viable 

resource to the trucking industry. Just as 

important has been the dedication of those 

of you who have supported the activities of 

the committee by attending the seminars 

and making the growth happen. Thanks to 

each of you for your ongoing commitment 

and for your time. 

While serving as program chair for that 

inaugural stand-alone meeting in St. Louis, 

I set a goal of expanding the circle of committee 

members involved in speaking, 

writing and leading. While I am pleased to 

report that the goal has been met, there is 

still room for increased participation! At a 

planning meeting for the Las Vegas seminar, 

I sat around a dinner table and realized 

that every committee member involved 

in planning the seminar had sought an 

opportunity to become active in Trucking 

Law Committee events and had earned 

and received that opportunity. In fact, 

based on my own nonscientific tabulation, 

the Trucking Law Committee’s success in 

advancing its members into positions of 

leadership is incredible. Without exception, 

if members wanted to get involved and did 

get involved, committee leadership opportunities 

followed. So there you have it. The 

Time Is Now to get involved in your DRI 

Trucking Law Committee. In addition to 

the tremendous marketing and networking 

opportunities that await you, you have 

an opportunity to help elevate your practice 

and those of your colleagues, as well as your 

base of knowledge for the benefit of the clients 

you represent or hope to represent. 

Adelante! 


Trucking Law 

Admissions of “Guilt” 

By Brian Del Gatto 

and Michaelle Jean-Pierre 

The Boomerang 

Effect of Traffic 

Citations 

The general idea of 

cause is that without 

which another thing, 

called the effect, 

cannot be. The final 

cause is that for 

the sake of which 

anything is done. 

—George William Howard, 

7th Earl of Carlisle, 

Lord Morpeth 

The laws of cause and effect govern the universe as we 

know it. A cause is the basis for an action or response, 

whereas the effect is what happens as a result of the 

cause. For every action there is an equal and opposite 

reaction. This fundamental law established 

by Sir Isaac Newton is visible in every 

aspect of life including the disposition of 

traffic citations. 

According to Florence Shinn, “The game 

of life is the game of boomerangs.” The 

boomerang is a curved device that can be 

used as a weapon or for sport. Boomerangs 

are believed to be one of the first heavierthan- 

air flying machines ever invented by 

human beings. Once thrown, the boomerang 

travels in an elliptical path and eventually 

returns to its point of origin. Although 

not curved, a traffic citation issued as a 

result of a vehicular collision may eventually 

return in the form of a subsequent civil 

litigation for personal injury, cargo or property 

damage. The citation may have little 

effect or prove disastrous when defending 

a civil action related to the accident. 

Generally, when an accident occurs, one 

of the parties is issued a traffic citation 

(usually the big, bad, tractor- trailer). The 

citation demands a response within a certain 

time frame. The cited party will have 

to decide in which manner to respond to 

the ticket: pay the fine, plead guilty or contest 

the ticket. Not uncommonly, a longhaul 

driver or a transportation company 

would rather pay a fine than fight a citation. 

We suspect that law enforcement officers 

are aware of this and give the benefit of 

the doubt to the non-truck driver during an 

accident investigation. 

Statutes of limitations for personal 

injury, cargo or property damage expire at 

various points after the date of an accident, 

depending on the state involved. Thus, in 

almost all scenarios, the cited party would 

have to respond to the traffic citation well in 

advance of a notice of civil litigation. 

Here is where the boomerang effect 

comes into play. Depending on the state, 

evidence of the disposition and a guilty plea 

to a traffic citation may be admissible and 

utilized as a weapon against a transportation 

company and driver at trial. A jury 

may view the citation and guilty plea as an 


n Brian Del Gatto is the managing partner of the Connecticut office of Wilson Elser, an executive committee 

member, and chair of the Motor Transportation and Logistics Practice Group at the firm. He has a 

nationwide Transportation Practice and is a member of TLA, TIDA, DRI and other transport organizations. 

Michaelle Jean-Pierre is a transportation team associate in the Wilson Elser Connecticut office. She graduated 

from University of Pittsburgh in May, 2002, and Pace Law School in May 2007.

indication of fault, which may ultimately 

result in a verdict for the plaintiff, and possibly 

support a punitive damage award. 

In the words of Stephen R. Covey, “While 

we are free to choose our actions, we are not 

free to choose the consequences of those actions. 

Consequences are governed by natural 

law.” Once issued, a client must respond 

to a traffic citation. The “cause” is the issuance 

and disposition of the traffic citation. 

The manner in which a plea to the traffic citation 

plays out in a subsequent civil litigation 

is the “effect.” Depending on the type of 

plea, evidence of a traffic citation and its disposition 

may become a legal boomerang. 

Every transportation attorney responding 

to either an accident or defending a serious 

trucking mishap well after the event has 

come face-to-face with the laws of “cause 

and effect.” It is of the utmost importance 

in this situation that a transportation company, 

its driver, and under certain circumstances, 

the insurer, collaborate on how to 

respond to a citation. In our opinion, transportation 

companies should address pleading 

to a traffic citation much as they would 

address issues of post- accident drug and 

alcohol testing under the Federal Motor 

Carrier Regulations, which requires testing 

after accidents on drivers whose performance 

could have contributed to the 

accidents, as determined by a citation, and 

for all fatal accidents, even if a driver is 

not cited for a traffic infraction. 49 C.F.R. 

§382.303. Therefore, trucking companies 

should establish internal policy regarding 

pleadings to traffic citations. 

This article will focus mainly on noncriminal 

traffic citation issues surrounding 

the disposition of traffic tickets and 

their potential effect on subsequent civil 

litigation. 

Traffic Violations 

Traffic laws are generally adopted for the 

public’s safety, to regulate the conduct of 

motor vehicle operators on state and local 

roadways and to protect against injuries 

from automobile collisions. State and local 

police issue traffic violations after motor 

vehicle accidents to drivers whom the 

police believe have caused or contributed 

to these accidents. 

Generally, a traffic citation states which 

law a driver violated and may contain a 

description of how the driver violated the 

law, as well as statements of the facts surrounding 

the incident. The citation also 

contains guidelines on how to respond to 

the citation. Normally, a driver may enter 

a plea by mail, pay a fine, or schedule a 

court date to appear before a judge, magistrate 

or hearing officer in connection 

with the traffic citation. Failure to respond 

to the citation may lead to a default judgment, 

an arrest and, in some cases, a suspended 

license. 

A traffic court’s proceedings are usually 

short, and generally result in a plea bargain. 

A plea bargain is a negotiation between the 

prosecution and defense—and sometimes 

the judge, depending on the jurisdiction— 

that settles a dispute regarding an infraction. 

An example of a plea bargain is when 

a defendant pleads guilty to a traffic offense 

in exchange for payment of a fine. Often, 

transportation companies and their drivers 

accept plea bargains because of their convenience, 

for example, when faced with litigating 

at distances, or to avoid conducting 

trials. If a transportation company does not 

accept a plea bargain, a trial over the traffic 

ticket might ensue, and the penalties may 

be greater than the fine offered as part of 

the plea bargain. 

During a traffic citation trial, the prosecution 

and defense are permitted to introduce 

evidence to support their claims, such 

as issuing police officer testimony or witness 

testimony. The focus of traffic court 

trial is whether or not the accused did 

in fact violate the traffic ordinance. During 

the proceeding, generally the issues of 

negligence and damages are not litigated. 

Depending on the method of disposition 

and the nature of the plea that a defendant 

enters, a traffic court verdict may boomerang, 

years later, in subsequent civil litigation 

for personal injury arising from that 

motor vehicle accident. 

Guilty Plea as an Admission 

In every civil case, each party attempts to 

introduce evidence that causes prejudice 

to the other party or tends to prove its case 

either directly or circumstantially. Generally, 

all relevant evidence is admissible 

in trial unless there is a sound reason to 

exclude it. Evidence is relevant if it tends to 

make the existence of a fact that is consequential 

to determining an action more or 

less probable than would be the case without 

the evidence. Fed. R. Evid. 401. However, 

not all relevant evidence is admissible. 

Relevant evidence may be deemed inadmissible 

if its probative value is outweighed 

by the danger that it will unfairly prejudice 

the other side. Fed. R. Evid. 403. 

Typically, a party’s assertion or conduct 

that is inconsistent with that party’s position 

at trial may be offered into evidence 

A driver or the company 

that controls decision 

making should think twice 

prior to pleading guilty 

to a traffic citation as a 

knee-jerk reaction. 

against that party as an admission. Fed. R. 

Evid. 803. The admission can only be used 

against the person who made the statement. 

Basile v. Huntington Utilities Fuel, 

400 N.Y.S.2d 150 (N.Y. App. Div. 1977). 

Further, an admission must appear to be 

against the interest of the declarant at the 

time of trial. 

Admissions are generally admissible 

in court because it is improbable that a 

party will admit anything adverse unless 

it is true. Cox v. State, 3 N.Y.2d 693, 698– 

699, 177 N.Y.S.2d 818 (N.Y. 1958); Reed v. 

McCord, 160 N.Y. 330, 54 N.E. 737 (N.Y. 

1899). Depending on the jurisdiction, a 

guilty plea in response to a traffic infraction 

may be admissible against the declarant in 

civil litigation arising from the same occurrence 

as an “admission against interest” or 

as an “admission by a party- opponent.” 

Beale v. Speck, 127 Idaho 521, 530 (Idaho 

Ct. App. 1995). 

While some courts find traffic citation 

pleas unreliable evidence, several courts 

have admitted guilty pleas as evidence to 

support an issue. In Ryan v. Westgard, the 

Washington Court of Appeals held that 

guilty pleas for traffic offenses were admissible 

in subsequent civil litigation as statements 

against interest. Ryan v. Westgard, 

530 P.2d 687 (Wash. Ct. App. 1975). 


Trucking Law 

The court in Ryan stated that a “plea 

of guilty to the negligent driving charge 

could be brought in to show the defendant’s 

admission of negligence on his part 

at the time in question. It is true that the 

defendant faces a hard choice in whether 

to plead guilty to a charge that may be presented 

later in a civil case as an admission 

against himself or face the possibility 

It is not uncommon 

for people to plead guilty 

to traffic charges for 

reasons of convenience 

or expediency. 


of conviction of a charge that may expose 

him to greater penalties. The choice is 

his, however, to be made in the face of the 

risks involved; and he must face the consequences 

of his choice.” Id. at *695. There, 

the defendant was able to explain his reasons 

for pleading guilty and the jury was 

free to accept or reject his explanation. 

In Jacobs v. Goodspeed, the defendant, a 

driver who pled guilty to a citation for following 

too closely in violation of Connecticut 

Statute §14-240, also admitted to the 

same conduct in his motor vehicle accident 

report. Jacobs v. Goodspeed, 429 A.2d 

915 (Conn. 1980). In Jacobs, the Supreme 

Court of Connecticut held that the defendant’s 

guilty plea to the traffic infraction was 

an admission tending to prove his negligence, 

as was his statement in the motor 

vehicle accident report. Id. However, such 

admissions are not conclusive on the issue 

of negligence. Id. See also Beale v. Speck, 

127 Idaho 521, 530 (Idaho Ct. App. 1995). 

As the court stated in Beale, “The party 

against whom the evidence is offered is free 

to explain the circumstances under which 

the guilty plea was entered, and the jury, as 

the trier of fact, shall determine the weight 

to which that explanation is entitled.” Beale 

v. Speck, 127 Idaho 521, 530 (Idaho Ct. App. 

1995). 

In Jacobs, the defendant was able to minimize 

the boomerang effect by offering evidence 

explaining his position. In addition 

to the defendant’s admissions, the jury 

considered evidence of adverse weather 

conditions, conflicting testimony regarding 

speed and allegations of third-party 

negligence. Fortunately for the defendant, 

the jury was able to weigh the guilty plea 

against all other evidence and enter a verdict 

for the defendant. 

Notwithstanding Jacobs or Ryan, evidence 

of a guilty plea may be interpreted 

as an admission of negligence, thereby 

undermining a defendant’s introduction 

of circumstantial evidence when defending 

a case. Even though a defendant has 

the opportunity to explain the reasons for 

entering a guilty plea, it is up to the jury 

to determine the weight of the evidence. 

Thus, a driver or the company that controls 

decision making should think twice 

prior to pleading guilty to a traffic citation 

as a knee-jerk reaction. 

Guilty Plea as Evidence of Liability 

In New Jersey, evidence of a defendant’s 

traffic offense- related guilty plea is admissible 

in a civil suit to establish liability 

arising from the same accident. Eaton v. 

Eaton, 575 A.2d 858 (N.J. 1990). However, 

it does not conclusively prove an offense. 

The party who entered the plea is allowed to 

present evidence to persuade a jury not to 

interpret the guilty plea as evidence of negligence. 

A defendant may want to present 

carefully crafted evidence that a plea was 

merely a compromise or entered for expediency 

or convenience to avoid the cost of 

contesting the charge. 

Regardless, a guilty plea coupled with 

circumstantial evidence surrounding an 

accident, may afford a plaintiff a basis for 

a favorable ruling on a motion for summary 

judgment. In McGraw v. Ranieri, for 

instance, the plaintiff moved for summary 

judgment citing the defendant’s guilty plea 

to a traffic infraction. McGraw v. Ranieri, 

608 N.Y.S.2d 577 (N.Y. App. Div. 1994). 

The New York Appellate Court in 

McGraw noted that the defendant’s guilty 

plea was evidence of negligence and an 

admission that the defendant did act as 

charged. McGraw is an example of a case in 

which a plaintiff used a defendant’s guilty 

plea as an evidentiary weapon in a summary 

judgment motion, cutting off the 

defendant’s opportunity to rebut or explain 

the circumstances surrounding the guilty 

plea to a jury. Id. 

However, in New Jersey and some other 

states, a defendant can plead guilty with 

a civil reservation, or something similar, 

during traffic court proceedings, to prohibit 

a plaintiff from introducing a guilty 

plea as evidence in subsequent civil litigation. 

A civil reservation is a specific reservation 

made on behalf of a defendant 

opposing the use of a guilty plea in a civil 

suit. On a defendant’s request, a court can 

order that a guilty plea will not serve as 

admissible evidence in any civil proceeding. 

N.J. Court 7:6-2(a)(1). This procedure 

allows a defendant driver to offensively 

combat the effect of pleading guilty to a 

traffic infraction in the event that a plaintiff 

subsequently files a civil suit. 

Guilty Pleas in Open Court 

In states such as Arkansas, Maryland and 

Texas, when a driver physically appears in 

court and knowingly and voluntarily pleads 

guilty to a traffic infraction, this evidence 

may be admissible in a subsequent civil litigation 

arising from the same occurrence. 

In addition, transcripts of the proceedings 

may be used. The reasons for admitting 

this evidence varies by jurisdiction. 

For example, in Dedman v. Porch, the 

Supreme Court of Arkansas held that evidence 

that a motorist had been cited for 

failure to yield the right-of-way and that he 

paid the ticket rather than appear in court, 

was not admissible as a statement against 

interest in a subsequent property damage 

action. Dedman v. Porch, 739 S.W.2d 

685 (Ark. 1987). The court reasoned that 

the only proper evidence relating to a traffic 

violation conviction is a party’s guilty 

plea in open court. Similarly, in Cox v. 

Bohman, the Texas Court of Appeals, held 

that “unless a plea of guilty to a traffic 

offense was made in open court, according 

to law, evidence of such guilty plea is 

not admissible in a civil suit for damages 

arising out of negligence giving rise to the 

charge.” Cox v. Bohman, 683 S.W.2d 757, 

759 (Tex. App. 1984). 

In Maryland, an admission of guilt in 

open court is admissible as evidence in 

civil litigation arising from the same accident. 

The probative value is deemed to 

outweigh the potential, prejudicial effect 

of a guilty plea on a jury. Maryland courts

have consistently held that admissions of 

guilt in open court are far “more probative 

than a questionable acknowledgment 

of culpability that might be inferred from 

paying a preset fine in lieu of going to 

court.” Briggeman v. Albert, 586 A.2d 15, 

18 (Md. 1991). Hence, like a boomerang, 

a guilty plea in open court may return as 

evidence of negligence or as an admission 

against the declarant in a subsequent civil 

proceeding. 

Withdrawn Guilty Plea 

A defendant can later withdraw a guilty plea 

based on due process grounds; however, the 

withdrawn guilty plea could still resurface 

as evidence in a civil trial. In Cohens v. Hess, 

the defendant received a traffic infraction 

citation for failure to yield the right-of-way 

while making a left turn. Cohens v. Hess, 92 

N.Y.2d 511 (N.Y. 1998). Approximately two 

weeks after the incident, the defendant pled 

guilty in Geneva City Court in New York for 

failure to obey a traffic- control device and 

was fined 75 dollars. 

Nearly three years after the defendant 

entered his plea, and six months after the 

plaintiff commenced a personal injury 

action, the defendant returned to Geneva 

City Court accompanied by his attorney 

and successfully moved the court to allow 

him to withdraw his previously entered 

guilty plea, and the court vacated the conviction. 

In support of his position, the defendant 

claimed that his earlier decision to 

enter the plea was not made with the advice 

of legal counsel. Because the defendant’s 

motion went unopposed by the local district 

attorney, the Geneva City Court permitted 

the defendant to withdraw his plea 

and vacated the conviction. 

During the civil trial, the plaintiff tried to 

use the vacated plea to impeach the defendant’s 

testimony on cross- examination. 

However, the trial court did not permit 

the plaintiff to introduce evidence of the 

vacated plea, shielding the defendant from 

the boomerang effect. 

Despite the trial court’s ruling, the Court 

of Appeals of New York held that the withdrawn 

plea was admissible but that the 

defendant could offer his reasons for the 

withdrawn plea. The court reasoned that 

because a guilty plea to a traffic violation is 

admissible as proof of negligence in a subsequent 

civil litigation, a similar rule could 

apply in this case. The Cohens decision 

suggests that guilty pleas vacated on constitutional 

or statutory grounds would be 

inadmissible. Conversely, in other jurisdictions, 

such as Colorado, “evidence of a plea 

of guilty, later withdrawn… is not admissible 

in any civil or criminal action, case, or 

proceeding against the person who made 

the plea or offer.” Colo. R. of Evid. 410. 

Guilty Pleas to Impeach 

In New York, a noncriminal traffic infraction 

and the penalty or punishment 

imposed cannot be used to affect or impair 

the convicted person’s credibility as a witness. 

Ando v. Woodberry, 168 N.E.2d 520 

(N.Y. 1960). However, a plaintiff can use the 

fact that a defendant pled guilty to a traffic 

offense as a prior inconsistent statement to 

impeach testimony concerning negligence. 

Cohens v. Hess, 705 N.E.2d 1202 (N.Y. 1998). 

The defendant is permitted an opportunity 

to explain the circumstances surrounding 

the guilty plea. Then the jury will evaluate 

the testimony and decide the weight of the 

plea. This may have a detrimental effect on 

the defense of the civil action. 

Guilty Pleas Governed by Statute 

Each state has its own procedures regarding 

admissibility of traffic citations. In 

Colorado, Florida, Maine, Minnesota and 

Oregon, statutes govern the admissibility 

of traffic infraction guilty pleas. 

Under Oregon statutes, a guilty plea in 

response to a criminal traffic citation is 

admissible as an admission against interest, 

whereas when the offense is a noncriminal 

traffic infraction, a guilty plea is 

inadmissible. Ryan v. Ohm, 593 P.2d 1296 

(Or. Ct. App. 1979). 

In Maine, evidence of a defendant’s 

admission to a traffic infraction of imprudent 

speeding is precluded by statute, 

which renders it inadmissible as an admission 

by party- opponent in subsequent civil 

litigation. Theriault v. Swan, 558 A.2d 369, 

370 (Me. 1989). Under Florida law, no one 


Trucking Law 

can introduce an admission of guilt to a 

traffic infraction as evidence in any other 

proceeding. Carter v. Rukab, 437 So. 2d 

761, (Fla. Dist. Ct. App. 1983). Similarly, the 

Minnesota statute excludes pleas of guilt 

in traffic matters from being admitted into 

evidence in civil litigation. 

Within these five states, transportation 

companies, their drivers and the attorneys 

As the procedures 

used to adjudicate traffic 

infractions are informal, 

most courts refuse to 

apply collateral estoppel. 

who defend them may be relieved to know 

that pleading guilty to a noncriminal traffic 

infraction will not boomerang, prejudicing 

cases. Courts will not admit a 

noncriminal guilty plea as evidence during 

subsequent civil litigation. 

Nolo Contendere Pleas 

A plea of nolo contendere permits the 

accused to neither admit nor deny committing 

the crime or infractions charged. 

Instead, he or she can simply consent to 

a punishment. Generally, a court will not 

permit a plaintiff to use evidence of a plea 

of nolo contendere as an admission of guilt 

in a subsequent civil trial. However, not all 

states offer the accused the option of pleading 

nolo contendere. 

Some courts have argued that a plea of 

nolo contendere should be admissible as 

an admission by conduct. As a form of circumstantial 

evidence, an act inconsistent 

with a party’s trial claim may be shown as 

an admission. It is argued that the payment 

of a traffic fine is an implied admission that 

the defendant committed the act charged 

and, therefore, should be admissible. 

Conversely, it has been noted that pleas of 

nolo contendere may be entered for reasons 

of expediency or convenience and without 

much regard to guilt. Even though a plea 

may be regarded as an implied admission, 

“its inconclusive and ambiguous nature 


dictates that it should be given no currency 

beyond the particular case in which it was 

entered.” Lawrence v. Kozlowski, 372 A.2d 

110 (Conn. 1976). 

Various jurisdictions have held that a 

plea of nolo contendere is inadmissible as 

either an admission by conduct or a verbal 

admission, even if followed by a finding 

of guilty and the imposition of a fine or 

other penalty. Casalo v. Claro, 165 A.2d 153 

(Conn. 1960). Similarly, the mere payment 

of a fine without proof of a plea is not an 

admission, either verbal or by conduct. Id. 

Courts take into consideration the fact 

that most people tend to pay traffic fines 

by mail without intending to admit guilt. 

Accordingly, in those jurisdictions, the 

payment of a traffic fine is not considered a 

guilty plea or an express acknowledgment 

of guilt, but is considered equivalent to a 

plea of nolo contendere. La Rue v. Archer, 

130 Idaho 267, 270 (Idaho Ct. App. 1997); 

Hannah v. Ike Topper Structural Steel, 201 

N.E.2d 63 (Ohio Ct. App. 1963). 

For instance, in Maryland, courts do not 

consider traffic fines paid either by mail 

or personally as the evidentiary equivalent 

of a guilty plea in open court. Instead, 

Maryland courts consider this consent to 

conviction. It is a well established rule in 

Maryland that a conviction, even by consent, 

is not admissible to prove liability 

in a subsequent civil action. Briggeman 

v. Albert, 586 A.2d at 17. The probative 

value is outweighed by its prejudicial effect, 

because a jury could possibly substitute the 

opinion of the issuing police offer or the 

traffic judge for its own. 

Other states, such as New Mexico and 

Oklahoma, have held that evidence of a 

traffic fine payment is inadmissible without 

an affirmative showing that a traffic fine 

was paid because the defendant believed 

him or herself guilty. Turner v. Silver, 587 

P.2d 966 (N.M. Ct. App. 1978). In Turner 

v. Silver, the New Mexico Court of Appeals 

held that a traffic citation for obstructing 

traffic was admissible because the defendant 

understood that he was guilty of 

the charge. Id. The court also held that a 

party who is charged with a traffic offense 

and pays a fine because he or she understood 

or thought that he or she was guilty, 

“is akin to a party who pleads guilty. It constitutes 

an admission against interest and 

is admissible evidence.” Id. 

Additionally, in Walker v. Forrester, the 

appellee received a traffic citation for “failure 

to devote attention to driving,” which 

she paid by mail. Walker v. Forrester, 764 

P.2d 1337 (Okla. 1988). The Supreme Court 

of Oklahoma stated that the case record 

did not contain proof that the appellee 

pled guilty to the traffic citation. To the 

contrary, in the appellee’s deposition, she 

stated that she simply mailed the fine to 

the municipal clerk. Her deposition testimony 

was similar to a plea of nolo contendere. 

Accordingly, the court held that this 

evidence was only admissible in a subsequent 

civil proceeding when the defendant 

voluntarily and knowingly entered a plea of 

guilty to the traffic citation. Id. 

Collateral Estoppel 

Collateral estoppel is an affirmative defense 

used when an issue of ultimate fact has been 

determined by a valid and final judgment. 

Consequently, the issue cannot be relitigated 

between the same parties or their 

privies in subsequent litigation. Stevenson 

v. Wright, 273 Neb. 789, 793 (Neb. 2007). 

Collateral estoppel generally requires that: 

(1) the cases have identical facts and issues; 

(2) a court issued a final judgment on the 

merits in the previous case; and (3) “the 

party against whom the plea is asserted 

must have been a party to or in privity with 

a party to the prior adjudication.” Hadley v. 

Maxwell, 27 P.3d 600, 602 (Wash. 2001). 

Most jurisdictions have held that it is 

inappropriate to apply collateral estoppel 

to minor traffic offenses because of the little 

incentive to vigorously contest cases 

with small or nominal damages at stake. 

Id. It is not uncommon for people to plead 

guilty to traffic charges for reasons of convenience 

or expediency even though they 

may believe that they are innocent. The 

best example is the long-haul transport 

driver who would lose more wages contesting 

a traffic citation than the fine is worth. 

Needless to say, expediency wins out. Furthermore, 

traffic court proceedings often 

end in conviction by consent rather than 

by trial, thus depriving a defendant of a full 

and fair opportunity to litigate the issues 

involved in a traffic citation. 

For example, in Stevenson v. Wright, the 

Supreme Court of Nebraska noted that the 

traffic court proceedings only adjudicated 

whether the defendant operated his vehicle

in a careless, reckless or negligent manner, 

whereas the civil trial raised issues of negligence 

and contributory negligence. Stevenson 

v. Wright, 273 Neb. 789 (Neb. 2007). 

There, collateral estoppel was precluded 

because the issues were not identical, and 

the defendant’s prior conviction did not 

derive from full and fair litigation. See also, 

State v. Gusman, 874 P.2d 1112, 1117 (Idaho 

1994) (refusing to give collateral estoppel 

effect to license suspension hearings 

because they lack a full and fair opportunity 

to litigate); Parklane Hosiery Co. v. Shore, 

439 U.S. 322, 329 (1979) (holding disincentive 

to vigorously contest cases with small 

or nominal damages at stake could be a reason 

not to apply collateral estoppel); Beale 

v. Speck, 903 P.2d 110, 119 (Idaho Ct. App. 

1995) (holding collateral estoppel for convictions 

on misdemeanor traffic offenses 

generally inappropriate except perhaps for 

guilty pleas in open court); Rice v. Massalone, 

554 N.Y.S.2d 294 (N.Y. App. Div. 1990) 

(holding that collateral estoppel was inappropriate 

after an administrative determination 

of liability for a traffic accident); 

Byrd v. People, 58 P.3d 50, 55 (Colo. 2002) 

(holding that the lesser consequences and 

procedures involved in infraction proceedings 

simply did not warrant the reliability 

necessary for estoppel to apply); Render v. 

City of Southfield, 2007 WL 1228641 (Mich. 

Ct. App. 2007) (holding that evidence of a 

conviction on a charge of a traffic violation 

was not proof of civil liability “because the 

elements of proximate causation and comparative 

negligence,” which are fully examined 

in a civil action, are not adequately 

considered in traffic violation proceedings); 

Marotta v. Hoy, No. 8232, slip op. at 

3, N.Y.S.2d 415, 417 (N.Y. App. Div. 2008) 

(holding that a determination concerning 

a traffic violation should not have collateral 

estoppel effect in a subsequent negligence 

action). 

As the procedures used to adjudicate 

traffic infractions are informal, most courts 

refuse to apply collateral estoppel, which 

would limit a full and fair consideration 

of the issue in a civil action. Regardless of 

whether a defendant was found guilty or 

acquitted during traffic court proceedings, 

the issues surrounding the traffic infraction 

may be relitigated in a subsequent 

civil action. Thus, a traffic court verdict 

does not bind the parties in a subsequent 

Admissibility of the Disposition of Traffic Citations—Selected States 

Depending on the jurisdiction, the disposition of a traffic citation may ultimately affect the resolution 

of a civil action arising out of an accident. Below is a summary of certain state-specific 

rules regarding the admissibility of the disposition of traffic citations. 

State 

Alabama 

Arizona 

Arkansas 

Connecticut 

Delaware 

Georgia 

Maryland 

Michigan 

Nebraska 

New York 

Ohio 

Pennsylvania 

Tennessee 

Admissibility of Traffic Infractions in Subsequent Civil Litigation 

A guilty plea to a traffic infraction is admissible as an admission against 

interest or an admission by a party opponent. 



A guilty plea to a traffic infraction is admissible in civil litigation only when 

driver physically appears in open court. 


interest or an admission by a party opponent and creates rebuttable presumption 

of negligence, which may be explained at trial. 







A guilty plea to a traffic infraction is generally not admissible in a subsequent 

civil action. 



Evidence of guilty plea to traffic citation is admissible as some evidence of 

negligence, but a driver may explain reasons for guilty plea to jury at trial. 



A guilty plea to a traffic infraction is generally not admissible in a subsequent 

civil action. 



civil action for personal injuries, and the 

defendant will have an opportunity to relitigate 

the issues surrounding the traffic 

infraction. 

Conclusion 

It is an enduring truth, which can never 

be altered, that every infraction of the 

Law of nature must carry its punitive 

consequences with it. We can never get 

beyond that range of cause and effect. 

—Thomas Troward 

Regarding transport accidents, defense 

counsel will want to consider whether evidence 

of the disposition of a traffic citation 

will be used against defendants in 

subsequent civil litigation for personal 

injury. With proper planning and by offering 

sound legal advice, counsel can limit or 

eliminate the effects on trucking companies 

and drivers in civil actions. 

Advise clients that they will want to 

review applicable state statutes and common 

law prior to responding to a traffic 

citation. If we can take away the cause— 

guilty pleas—in turn, the effect will cease. 

It is imperative that defense counsel and 

trucking- related clients consider the civil 

ramifications preceding a traffic citation 

payment or before entering a guilty plea. As 

each jurisdiction maintains its own specific 

laws, advise clients to consult with an attorney 

regarding possible civil liability prior 

to responding to traffic citations and that 

transportation companies would be wise 

to establish a consistent policy on responding 

to both criminal and noncriminal citations. 


Trucking Law 

Points North 

By Thomas J. Fay 

and Andrew B. Ranks 

Representing 

a Canadian 

Truck Driver 

Regulations, border 

concerns, language 

barriers and cultural 

issues will inevitably 

impact your case. 

In general, Americans have difficulty comprehending 

the extent that trucking has become a part of Canadian 

culture and economics. In 2005, the Canadian trucking 

industry generated approximately $67 billion dollars in 

revenue. “Trucker” is the number one 

occupation among Canadian males. Of 

course, trucking does not stop at the Canadian 

border. In 2008, the road-based trade 

from Canada to the United States totaled 

$327 billion dollars, 80 percent of which 

traveled through the Ontario and Quebec 

border crossings. In total, Canadian truckers 

drive approximately 60 billion miles 

per year within the United States. Those 

miles account for more than 25 percent of 

the miles traveled by large trucks within 

the United States. While most Americans 

appreciate that Canada is the United States’ 

number one trade partner, it is easy to overlook 

that much of that trade is made possible 

through trucking and that the industry 

employs many Canadian citizens. 

Canadian truckers are involved in 

nearly 5,000 fatal accidents in the United 

States each year, and more than 12,000 

additional accidents involve injuries. Obviously, 

a vast majority of these miles, fatalities, 

and injuries are concentrated in the 

northern half of the United States. For 

counsel working in these states, it is crucial 

to understand the implications of representing 

a Canadian truck driver or a 

Canadian trucking firm involved in an 

accident across the border. Counsel must 

address language barriers, regulations, 

and cultural issues and potential additional 

causes of action when evaluating a 

case and preparing a defense. 

The purpose of this article is to assist 

defense counsel to handle cases involving 

Canadian truck drivers and trucking 

firms. Regulations, border concerns, language 

barriers and cultural issues all inevitably 

impact a case involving a Canadian 

trucker or trucking firm. Unless defense 

counsel is aware of the issues that differentiate 

a case involving a Canadian trucker or 

trucking firm from other trucking cases up 

front, counsel will face legal and practical 

disadvantages that may be difficult to overcome 

later in the case. This article will discuss 

the issues to better prepare counsel for 

trial and to counter strategies that a plaintiff’s 

counsel will likely raise. 


n Thomas J. Fay is an attorney in the Boston office of Boyle, Morrissey & Campo, P.C. In addition to DRI and 

its Trucking Law Committee, Mr. Fay is a member of the Massachusetts Defense Lawyers Association and 

the Trucking Industry Defense Association. Andrew B. Ranks is an attorney in the Manchester, New Hampshire, 

office of Boyle, Morrissey & Campo, P.C. He is a member of the Tri-State Defense Lawyers Association.

How Do Canadian Regulations 

of Trucking Compare with 

Regulation in the United States 

Regulation of commercial motor vehicles 

in the United States is primarily handled by 

the Federal Motor Carrier Safety Administration 

(FMCSA), an administration within 

the Department of Transportation. The 

FMCSA was created in 2000, following passage 

of the Motor Carrier Safety Improvement 

Act of 1999. The primary mission 

of the FMCSA is to reduce crashes, injuries, 

and fatalities involving large trucks 

and buses. The FMCSA does this primarily 

through regulations and enforcement of 

the regulations on all motor vehicle carriers 

operating within the United States. 

In Canada, regulation is partially handled 

by Transport Canada, a department 

of the federal government somewhat analogous 

to the U.S. Department of Transportation. 

Transport Canada creates standards, 

with input from provinces and the trucking 

industry, governing issues related to 

driver qualifications, carrier safety, vehicle 

weight, and transportation of hazardous 

materials. These standards are adopted 

as the National Safety Code (NSC). Established 

after consultation with the transportation 

industry in Canada, this code is 

made up of 16 minimum standards that, 

when followed, allow carriers and drivers to 

remain in compliance with local, national, 

and international rules for owning and 

operating commercial vehicles. 

In Canada, the federal role in establishing 

trucking regulations and policy is not 

as great as in the air, rail, and marine industries. 

This is because the roads used by 

trucks are primarily owned and maintained 

by the provinces, territories, and local governments. 

As in the United States with the 

FMCSA, Transport Canada is not the exclusive 

regulator of trucking. While the government 

of Canada has the constitutional 

responsibility for regulating trucks and busses 

that operate between provinces and internationally, 

the Motor Vehicle Transport 

Act (MVTA) delegates that authority to regulate 

these carriers to the provinces. Unlike 

many countries where the central government 

sets standards, Canadian provinces 

and territories have sole responsibility for 

the regulations controlling truck weights 

and dimensions. In fact, provincial and 

territorial governments are responsible 

for ensuring that their safety ratings systems 

comply with the requirements of the 

MVTA regulations. Transport Canada will 

monitor the implementation and enforcement 

of these ratings. Canada’s regulation 

system, therefore, is considered much more 

decentralized than the system in the United 

States, due to the control and authority to 

regulate motor carriers enjoyed by Canadian 

provinces. 

A study sponsored by the FMCSA was recently 

performed analyzing and comparing 

the motor carrier regulatory regimes in the 

United States and Canada. In August 2008, a 

report was submitted to the FMCSA entitled 

Canadian Issues Study Final Project Report. 

The purpose of the study was to understand 

differences between rulemaking in the 

United States and Canada and to identify 

issues impacting harmonization and reciprocity 

between the two countries. 

Overall, the study concluded that U.S. 

and Canadian regulations are largely similar, 

including regulations pertaining to 

safety ratings, accident reporting requirements, 

and regulation of motor carriers. 

Generally, the U.S. Federal Motor Carrier 

Safety Regulations (FMCSR) and the Canadian 

NSC provide similar regulations for 

accident reporting requirements and company 

responsibilities after it has reported 

an accident. Differences were noted, however, 

between regulations pertaining to 

hours of service, driver qualifications, and 

daily log requirements, among others. 

While the differences may appear minor, 

as discussed below, they can often significantly 

affect litigation. 

How Do Canadian Driver 

Qualification Requirements 

Compare with U.S. Requirements 

In the United States, driver qualifications 

are governed by 49 C.F.R. §391.11. Generally, 

this section requires that drivers be 21 

years of age, be physically and medically 

able to operate a commercial vehicle, be 

able to read and speak English, and have 

completed a road test certifying the driver’s 

ability to operate the commercial vehicle. 

Canadian drivers must meet the same 

general requirements of 49 C.F.R. §391.11, 

but are allowed to satisfy the requirements 

in alternative ways. Canadian drivers license 

requirements are regulated from province 

to province and provide varying class levels 

that correspond to the type of vehicle a 

driver will operate. There is no analogue 

to the Commercial Driver’s License (CDL). 

Rather, every licensed driver in Canada is 

capable of operating vehicles at a higher 

class, provided that they pass the necessary 

tests and other licensure requirements. 

Canadian drivers are also required to 

pass certain medical examinations before 

Understanding your 

driver’s qualifications will 

instantly put you ahead 

of the other side. 

receiving a license. This is because the 

medical examination is part of the general 

license requirement for all Canadian motor 

vehicle drivers. It is important to understand 

these basic requirements as the physical 

and medical capabilities of your client 

may be raised both by a plaintiff’s counsel 

and local police regarding a serious motor 

vehicle accident. It is not uncommon for a 

plaintiff’s counsel to raise issues regarding 

licensing when your driver has no special 

training or unique license. Moreover, 

the FMCSA has a program specifically for 

training local police throughout the United 

States on the issues presented by foreign 

commercial motor vehicles. Understanding 

your driver’s qualifications will instantly 

put you ahead of the other side. 

Are Canadian Drivers Required 

to Speak English 

Perhaps no other issue so obviously presents 

itself when representing a Canadian driver 

as the language requirement. At its most 

basic level, ensure that before meeting with 

your client you secure an interpreter familiar 

with the French- Canadian dialect, if necessary. 

A French interpreter, usually Parisian 

French, will often have difficulties with precise 

interpretations of the French- Canadian 

dialect. This is a little more than just inconvenient 

when realizing this problem in the 

middle of your client’s deposition. 

Canadian regulations do not have a specific 

language requirement for drivers. In 


Trucking Law 

fact, while Canadian drivers are required 

to have basic knowledge of road signs, the 

regulations explicitly allow an interpreter 

for drivers impaired by a language barrier. 

This unique American requirement, presents 

specific legal and practical issues for 

defense counsel. 

First, 49 C.F.R. §391.11(b) states: 

Except as provided in Subpart G of this 

Courts have split on 

whether negligence per 

se applies to violations of 

the Federal Motor Carrier 

Safety Regulations. 


part, a person is qualified to drive a 

motor vehicle if he/she— 

(2) Can read and speak the English language 

sufficiently to converse with 

the general public, to understand 

highway traffic signs and signals 

in the English language, to respond 

to official inquiries, and to make 

entries on reports and records. 

There has been considerable confusion 

over the years on the proper purpose and 

application of the regulation. In 2007, the 

owner and operator Independent Driver’s 

Association, Incorporated, in a report to 

the Federal Board of Carrier Safety Administration 

of the U.S. Department of Transportation, 

noted certain documentation 

compiled by SafeStat regarding the effects 

of language requirement violations. In particular, 

the report noted that one of the violations 

regularly cited among those listed 

in SafeStat is the failure of a driver to speak 

English as required by 49 C.F.R. §391.11(b) 

(2). The comments indicated that, “Under 

the Commercial Vehicle Safety Alliances Out 

of Service Criteria, a violation of this rule 

merits an out- of- service order. In the last 

four months of available data, [one particular 

firm] was cited for 25 violations of using 

a driver who does not speak English.” 

States have also expressed difficulties 

in applying the requirements uniformly. 

When originally promulgated by the Interstate 

Commerce Commission (ICC) in 1936, 

the ICC noted that the regulation was not 

intended to be enforced at roadside. It does 

not appear that the FMCSA has monitored 

this regulation very closely. In 1995, Utah 

sought guidance from the Federal Highway 

Administration (FHWA) on enforcing 

the regulation. In 1997, the FMCSA considered 

amending the rule and sought information 

about prior enforcement histories 

and guidance from the states and members 

of the public regarding the efficacy of 

the regulation. 

The potential rule revision was withdrawn 

in 2003 when the FMCSA noted that 

it had insufficient information to change 

the existing rule. During withdrawal, evidence 

was presented of problems associated 

with enforcing regulations. Representative 

Lincoln Diaz- Balart, of Florida’s 21st Congressional 

District, advised the FMCSA 

that in numerous instances police officers, 

judges, and magistrates had suspended 

individuals’ licenses. For example, judges 

suspended drivers’ licenses when drivers 

could not sufficiently communicate with 

a court. The ACLU submitted comments 

taking the position that the regulation was 

discriminatory and invited discriminatory 

enforcement. 

One notable example of enforcement of 

the regulation occurred after Hurricane 

Rita. As Hurricane Rita churned through 

the Gulf of Mexico on September 23, 2005, a 

full evacuation of the Gulf Coast was taking 

place. As part of this effort, a 54- passenger 

motor coach traveled northbound on Interstate 

45 near Wilmer, Texas. The motor 

coach carried 44 assisted- living facility 

residents and nursing staff. As they traveled 

along the interstate, a motorist noticed 

a right rear tire hub was glowing red 

and alerted the motor coach driver. The bus 

driver stopped in the left traffic lane and proceeded 

to the right shoulder of the interstate. 

The driver and nursing staff exited the motor 

coach and observed flames near the right 

rear wheel well. Evacuation was initiated, but 

the fire spread quickly. In the end, 23 passengers 

were fatally injured. Of the 21 passengers 

who did escape, two were seriously 

injured, and 19 suffered minor injuries. 

Prior to this, the senior assisted- living 

center had contacted a Canadian transportation 

carrier and negotiated a contract 

to transport residents from Bellaire, 

Texas to Dallas, Texas. The carrier then 

contracted with a direct carrier to provide 

motor coaches to evacuate residents and 

nursing staff. Hurricane Rita was expected 

to hit near Galveston on September 24. In 

addition to the bus being operated in violation 

of a contract signed by the Canadian 

owners and not being maintained, it was 

determined that the bus driver could not 

communicate with the passengers because 

he did not speak English. According to 

the National Transportation Safety Board 

accident report on this incident, the Canadian 

carrier failed to put the direct carrier 

“through a ‘due diligence’ process, did 

not adequately know the operator, and had 

no ongoing qualifications process for this 

operator.” National Transportation Safety 

Board, Highway Accident Report, Motor 

Coach Fire on Interstate 45 during Hurricane 

Rita Evacuation near Wilmer, Texas, 

September 23, 2005, at 107 (Feb. 21, 2007). 

How Does the English Language 

Requirement Affect Civil Litigation 

The primary manner in which an alleged 

violation of 49 C.F.R. 391.11(b)(2) may 

affect a lawsuit defense is through a claim 

of negligence per se. While it appears that 

no case law has addressed whether a violation 

of 49 C.F.R. 391.11(b)(2) constitutes 

negligence per se, examining how courts 

have addressed alleged violations of other 

similar regulations can offer guidance. 

Under this rubric, whether a violation of 

the 49 C.F.R. §391.11 requirement that drivers 

speak English constitutes negligence 

per se largely depends on whether a driver’s 

inability to speak English was a proximate 

cause of the damages alleged. Courts have 

split on whether negligence per se applies 

to violations of the Federal Motor Carrier 

Safety Regulations. 

In the case Hill v. Western Door, 2005 

WL 2991589 (D. Col. 2005), a U.S. District 

Court in Colorado ruled that violation of the 

FMCSR Driver- Log Rule constitutes negligence 

as a matter of law, but that a plaintiff 

must present evidence of a causal relationship 

between a violation and a wreck. The 

court held: 

[T]he requirement that drivers keep an 

accurate log of their duty status is related 

to the safety of other travelers on the 

road. Drivers are required to record their 

duty status so compliance with limita-

tions on hours of service contained in 

Part 395 can be monitored and enforced. 

FMCSR 395.3 and 305.5 provide specific 

limitations on the number or (sic) hours 

a commercial vehicle operator can be 

driving during certain periods of time. 

Although the regulations do not explicitly 

declare their purpose, a tie between 

safety and fatigue is clear. 

The court went on to conclude that in 

this particular case the evidence in the 

record failed to show a causal connection 

between the log violation and the accident. 

The court, therefore, granted summary 

judgment the defense on the plaintiffs’ negligence 

per se claim concerning the logbook 

violation portion of the allegations. 

In contrast, in Fortner v. Tecchio Trucking 

Inc., 597 F. Supp. 2d 755 (2009), the 

plaintiff sued the driver of a tractor- trailer 

truck, alleging that the defendant was negligent 

in failing to secure a load of paper 

rolls in the trailer causing a collision with 

the plaintiff’s vehicle resulting in property 

damage and personal injuries. There, the 

district court judge held that the defendant’s 

violation of the FMCSR requiring the 

defendant to ensure that the load was properly 

secured was negligence per se under 

Tennessee law. 

The court explained that the plaintiff 

could recover on the basis of negligence per 

se by showing that “(1) the defendant violated 

a statute or ordinance which ‘imposes 

a duty or prohibits an act for the benefit of a 

person or the public’; (2) the injured party 

was within the class of persons whom the 

legislative body intended to benefit and 

protect by the enactment of that particular 

statute or ordinance; and (3) such 

negligence was the proximate cause of 

the injury.” Id. at *757 (internal quotation 

marks omitted) (citing Smith v. Owen, 

841 S.W.2d 828, 831 (Tenn. Ct. App. 1992) 

(quoting Nevill v. City of Tullahoma, 756 

S.W.2d 226, 232–33 (Tenn. 1988)). 

The court first noted that the authorizing 

statute, 49 U.S.C. §31136(a), directed 

the secretary of transportation to establish 

minimum safety standards to ensure 

commercial motor vehicles are operated 

and loaded safely. In addition, the court 

noted that the Court of Appeals for the 

Sixth Circuit determined that “the purpose 

of the statutory provision underlying 

the relevant regulations was, at least in 

part, “the protection of the public on highways 

of interstate commerce from the operation 

by inexperienced, incompetent and 

unfit persons, by those engaged in excess 

of maximum hours, or operating with bad 

conditioned and dangerous equipment.” 

Id. (citing Commercial Standard Ins. Co. 

v. Robertson, 159 F.2d 405, 410 (6th Cir. 

1947)). The court went on to state, “Thus, 

the FMCSR regulation at issue in this case 

requires drivers of commercial motor vehicles 

to act in a certain way for the benefit 

of the public. Since plaintiffs clearly 

fall within the class of people the FMCSR 

intended to protect, the Court need only 

assess whether any genuine dispute as to a 

material fact exists as to whether Defendant 

violated the FMCSR or whether such violation 

was the proximate cause of Plaintiffs’ 

injuries.” Id. 

In analyzing the facts, the court concluded 

that the defendant did, in fact, violate 

49 C.F.R. §392.9 when it failed to secure 

the load of paper rolls to prevent lateral 

movement. The court proceeded to grant 

the plaintiffs’ motion for partial summary 

judgment but left for the jury the issue of 

damages and comparative fault. 

How Does Negligence Per Se 

Apply to Alleged Violations 

of 49 C.F.R. 391.11(b)(2) 

Defense counsel have two primary ways to 

oppose a claim of negligence per se based 

on a Canadian truck driver’s inability to 

speak English. First, defense counsel can 

prove that the regulation was not violated. 

As some complaints noted in 2003 before 

the FMCSA withdrew the regulation revision, 

the regulation does not provide clear 

guidance on what constitutes a violation. 

This problem becomes somewhat more 

complicated when you meet your driver 

and you assess his or her ability to speak 

English. Certainly, all but the most incompetent 

of drivers will understand signs, signals, 

and other basic road requirements. 

Assessing a driver’s English reading and 

speaking capabilities involves a grey area. It 

is important to assess your driver’s English 

speaking capabilities early in your case, including 

his or her academic background 

and other experience or training. 

However, your most complete defense 

to a negligence per se claim will be to file 

a motion for summary judgment on the 

ground that a plaintiff will be unable to 

prove that the alleged violation of the regulation 

caused or contributed to the accident, 

following the reasoning of Hill v. 

Western Door. More often than not, your 

driver’s ability to speak English will not 

have contributed to the accident at all. 

Proving causation will likely be a difficult 

hurdle for a plaintiff’s counsel to overcome, 

Get ahead of a potential 

argument that your 

client’s fatigue contributed 

to the accident. 

given that nearly all drivers are completely 

capable of understanding the U.S. rules of 

the roads and given the substantial miles 

driven by Canadian drivers in the United 

States. Removing this potential claim will 

prevent a plaintiff’s counsel from using language 

skills as leverage in the litigation and 

should also present an opportunity to prevent 

him or her from mentioning the regulation 

to potentially influence the jury. 

What Issues Are Presented to 

Canadian Drivers at the U.S. Border 

In the United States, drivers are generally 

limited to a maximum of 11 hours of driving 

after spending 10 hours off-duty, and 

they cannot drive more than 60 hours in 

a seven-day week or 70 hours in an eightday 

time span. Canada, on the other hand, 

allows drivers to drive a maximum of 13 

hours per day before eight hours of consecutive 

off-duty time is accumulated. In 

Canada, drivers are allowed 70 hours per 

seven-day cycle or 120 hours if following a 

14-day cycle. The biggest issues that Canadian 

drivers face in cross- border driving 

involve the differences between Canadian 

and United States’ hour regulations. 

Defense counsel need to have familiarity 

with these differences when defending 

Canadian drivers. 

Canadian drivers are required to comply 

with U.S. regulations on crossing the 

border. While obviously a problem will 

arise if a driver continues to use the Cana- 


Trucking Law 

One noteworthy cultural 

difference between the 

United States and Canada 

involves the disparate 

views about motor vehicle 

accident litigation. 

dian standard in the United States, failure 

to comply with U.S. regulations will most 

likely arise first at the U.S. border. When a 

Canadian driver arrives at the border, he or 

she must present a Record of Duty Service 

(RODS) for the last seven days of his or her 

work. Additionally, while a driver cannot 

suffer consequences for violations while 

operating in Canada, he or she must demonstrate 

compliance with requirements on 

entering the United States. This includes 

a requirement that the driver had spent at 

least 10 consecutive hours of off-duty time 

for their last off-duty period consistent 

with U.S. regulations. 

You must scrutinize your client’s driver’s 

log entries. Most importantly, verify 

that your client has strictly complied with 

sleeping requirements in both the United 

States and Canada. Get ahead of a potential 

argument that your client’s fatigue 

contributed to the accident. Also note that 

while your client will face no regulatory 

consequences for violating Canadian regulations 

over the U.S. border, a plaintiff’s 

counsel can still use these violations in the 

civil context. 

What Cultural Issues Are Presented 

to Canadian Drivers at the Border 

As discussed above, counsel must address 

a myriad of legal issues when representing 

a Canadian truck driver or trucking firm. 

In addition to the legal aspects of your case, 

in preparing a defense you should have 

awareness of other intangible and subtle 

issues. Due to the vast similarities between 

the United States and Canada, counsel 

tend to ignore all but the most obvious 

cultural issues. Nonetheless, the cultural 


issues may very well affect how your client 

presents at a deposition, how witnesses 

and local law enforcement treat your client, 

and most importantly, how a jury perceives 

your client. 

The importance of the Canadian trucking 

industry in Canada cannot be minimized. 

Some 400,000 Canadians are 

employed in the industry. The industry is 

influential and well organized. At least one 

Facebook.com group is dedicated to Canadian 

truckers. 

One noteworthy cultural difference 

between the United States and Canada 

involves the disparate views about motor 

vehicle accident litigation. In the United 

States, people accept motor vehicle accidents 

as fodder for litigation. “Ambulance 

chaser” and “whiplash” are well known 

terms in the United States. Insurance cards 

advise drivers not to accept fault at accident 

scenes and to document damages. Americans 

are ingrained from an early age on the 

basic aspects of litigation. 

While Canadians obviously have an 

understanding of the purposes and general 

nature of litigation, their basic approach 

and expectations of motor vehicle accident 

compensation is generally very different. 

In Quebec, for example, drivers are 

not allowed to sue for pain and suffering or 

economic loss. Insurance is purchased and 

administered by the Société de l’assurance 

automobile du Québec (SAAQ). The SAAQ 

covers damages caused by all personal 

injuries suffered in motor vehicle accidents, 

regardless of fault. 

When representing a driver from Quebec, 

for example, an attorney must realize 

that the different systems will lead to different 

expectations and behaviors. More than 

with other types of cases, it is important to 

fully describe the litigation process to your 

client, to make sure that he or she understands 

what the plaintiff seeks, how they 

intend to prove his or her case, and how 

your client should respond. This becomes 

especially difficult in a province such as 

Quebec, where more than 80 percent of the 

population speaks French only. 

In fact, each province has its own motor 

vehicle accident compensation regime. In 

British Columbia, one can sue for pain and 

suffering and economic loss. In Ontario, 

drivers can sue for pain and suffering under 

certain circumstances. In each situation, it 

is important to speak with your client as 

soon as possible to discuss the accident and 

implications of litigation. This understanding 

will impart the serious nature of the litigation 

and the importance of your client’s 

future testimony. 

Another cultural issue that potentially 

may affect your case is bias against Canadian 

truck drivers. Counsel who have represented 

truckers in the past are well aware 

of the biases held by the general public 

against all truckers. People can perceive 

truck drivers as a public menace, and truckers 

are often considered dangerous due to 

the inherent differences between cars and 

tractor- trailers. 

Adding the factor of “foreignness” further 

compounds the prejudices potentially 

involved. A juror could have had an experience 

with Canadian truckers and may 

recall a specific instance in which a driver 

has passed him or her at what that juror 

considers excessive speed, or has cut that 

juror off while merging. Drivers can find 

these events terrifying, regardless of who 

is at fault. The fact that a vehicle contains a 

foreign license plate will further solidify a 

memory and cement bias. It is often useful 

to confirm the potential existence of biases 

through voir dire. 

The fact that the driver and his or her 

company are foreign also will hinder the 

jurors’ ability to empathize with the defendants. 

In a case in which a company is 

sued for negligent hiring or vicarious liability, 

for example, secure a representative 

who will present well before a jury and has 

familiarity with American legal and cultural 

issues. More than anything, having 

awareness of the cultural issues will help 

you to determine the value of your case and 

the potential risk and exposures involved. 

Conclusion 

This article presented a brief overview of 

the issues involved in representing Canadian 

truck drivers and trucking firms. 

Considering the issues discussed above 

immediately with your client will permit 

you to get ahead of plaintiff’s counsel as 

quickly as possible. As with any other case, 

however, the facts of your particular case 

will ultimately decide the outcome. Nonetheless, 

by understanding different aspects, 

you will have an advantage over a plaintiff’s 

counsel.

Trucking Law 

In Search of a 

Fair Shake 

By F. Marshall Wall 

and Dexter M. Campbell III 

Bifurcation of 

Civil Trials in 

Trucking Cases 

When you and 

your client believe 

that bifurcation 

would prove useful, 

consider a motion 

at the start of a case 

and use discovery to 

develop arguments 

to support it. 

You are defending a trucking company and a driver 

sued as the result of a traffic accident. Settlement negotiations 

have broken down. High-low agreements have 

been rejected. Your case is heading to trial. As is often 

the case when defending trucking companies, 

the accident was severe, and the plaintiff 

suffered serious injuries. While there 

is no significant dispute about causation 

or damages, liability is very questionable. 

Without a doubt, the plaintiff’s injuries and 

the way that they changed the plaintiff’s 

life will elicit tremendous sympathy from 

a jury, and his or her attorney will seek significant 

compensatory damages. 

Since a traditional negligence jury trial 

consists of one trial in which a jury considers 

both negligence and damages, a judge 

may well allow the plaintiff’s attorney to 

discuss the plaintiff’s catastrophic injuries 

in great detail during voir dire and opening 

statements and while presenting evidence, 

leading to the coda—his or her closing 

argument. Your client is concerned that 

the damages evidence will evoke enough 

sympathy that the issue of liability will not 

receive a fair hearing. 

In fact, the courts have recognized this 

concern, articulated, for instance, by the 

United States District Court for the District 

of New Jersey, which wrote that “sympathetic 

jurors might be inclined to award 

Plaintiff some money… regardless of fault, 

if they were aware of the magnitude of the 

injuries incurred and the damages sought.” 

Miller v. New Jersey Transit Authority Rail 

Operations, 160 F.R.D. 37, 41 (D.N.J. 1995). 

So what can you do to prevent sympathy 

for the plaintiff from overwhelming strong 

arguments on negligence and to make sure 

that your client gets a fair trial How can 

you help your client reduce its exposure 

and best predict the outcome of a very dangerous 

case The Federal Rules of Civil Procedure 

and their state counterparts, as well 

as courts across the country, have provided 

a possible solution—bifurcation. 

Splitting the liability and damages issues 

into two phases, determining liability first, 

and then, if necessary, determining damages 

separately, can give defendants a fair 

chance to present liability defenses without 

facing a jury that is not mostly focused 

on a badly injured plaintiff. Bifurcation 

may offer your best chance to reduce or 

n F. Marshall Wall is a partner and Dexter M. “Chip” Campbell III an associate in the Raleigh, North Carolina, 

office of Cranfill Sumner & Hartzog LLP. Members of DRI’s Trucking Law Committee, both are also 

members of the firm’s trucking and transportation section who defend commercial motor vehicle accidents 

and other disputes involving trucking companies. 


Trucking Law 

even eliminate jury prejudice when a plaintiff 

suffers a catastrophic injury or death, 

which will likely improperly influence a 

jury if the jury considers liability and damages 

together. 

You must determine whether to seek bifurcation 

on a case-by-case basis. In an 

appropriate case, bifurcation has many 

positives, but it certainly also offers risks 

The court noted that 

since the main dispute 

was liability, a plaintiff’s 

victory… was likely 

to “greatly facilitate” a 

voluntary settlement. 

that you must assess fully and discuss with 

your client. For example, if a jury finds for 

a plaintiff on liability in the first phase of a 

trial and then moves on to damages, that 

jury may be less inclined to reduce an award 

for questionable liability because it has already 

decided and forgotten that issue. 

This article will examine some telling 

case law on bifurcation to provide you with 

an understanding of what courts consider 

in deciding whether to bifurcate a case and 

help you decide whether bifurcation is a 

desirable option for you and your clients. 

Some of the cases discussed below dealt 

with lawsuits against trucking companies; 

others did not. They are heavily weighted 

toward personal injury lawsuits involving 

catastrophic injuries or death. These 

cases generally, though not universally, 

have allowed bifurcation. Further, when 

courts have permitted bifurcation, these 

courts’ opinions often have set out some of 

the most common objections made by the 

plaintiffs’ bar, which will give you an idea of 

the objections that you will likely face. 

The Basis for Bifurcation: 

Fed. R. Civ. P. 42(b) 

Rule 42(b) of the Federal Rules of Civil 

Procedure gives judges discretion to order 

separate trials of issues or claims: (1) for 


reasons of convenience; (2) when conducive 

to expediting a case or to promote judicial 

economy; or (3) to avoid prejudice. 

Since bifurcation is discretionary, a court of 

appeals will overrule a decision to bifurcate 

only if the trial judge abused that discretion. 

See Mosley v. General Motors Corp., 497 F.2d 

1330 (8th Cir. 1974). Some courts have required 

that “[o]nly one of these criteria 

need be met to justify bifurcation.” Saxion 

v. Titan- C- Manufacturing, Inc., 86 F.3d 553, 

556 (6th Cir. 1996). Others seem to require 

that the party seeking bifurcation demonstrate 

that it will suffer prejudice if a court 

does not grant separate trials. See Marshall 

v. Overhead Door Corp., 131 F.R.D. 94 (E.D. 

Pa. 1990). Any party can move for bifurcation, 

or the court may order it sua sponte. 

See Saxion, 86 F.3d at 556. 

Federal courts have universally recognized 

that a trial judge has the right within 

his or her discretion to apply Rule 42(b) 

to bifurcate personal injury actions into 

separate phases to determine liability and 

damage issues. Moss v. Associated Transport, 

Inc., 344 F.2d 23 (6th Cir. 1965). The 

party “seeking bifurcation has the burden 

of showing that bifurcation is proper in 

light of the general principle that a single 

trial tends to lessen the delay, expense, and 

inconvenience to all parties.” Lowe v. Philadelphia 

Newspapers, Inc., 594 F. Supp. 123, 

125 (E.D. Pa. 1984). 

The Severity of a Plaintiff’s Injuries 

as a Factor in Bifurcation 

The case Moss v. Associated Transport, Inc., 

involved four consolidated actions for conflicting 

claims of death and injury and an 

unusual twist on bifurcation. 344 F.2d 23 

(6th Cir. 1965). Moss was permanently 

injured when he was riding as a passenger 

in a tractor- trailer truck that collided 

with another tractor- trailer truck owned by 

the defendant, Associated Transport, and 

operated by its employee. The driver of the 

Associated Transport truck and his passenger 

were both killed. 

The widows of the driver and passenger 

in the Associated Transport truck sued the 

driver and the owner of the truck in which 

Moss was riding at the time of the accident 

for wrongful death. Moss sued the driver 

and owner of the Associated Transport 

truck. The lawsuits were consolidated and, 

over the objection of Moss, the trial court 

directed that the jury should first determine 

the issue of liability and then, second, 

damages, if necessary. The jury found 

in the liability phase of the trial that Moss’ 

driver was negligent and exonerated the 

driver of the Associated Transport vehicle. 

As such, Moss’ claims were dismissed, and 

the widows prevailed at trial. 

On appeal, Moss argued, among other 

things, that separating the issues had prejudiced 

him, because he could not show the 

severity of his injuries and “was denied a 

weapon with which to combat the natural 

sympathy that a jury would feel for the two 

plaintiff widows who had, in effect, been 

made Moss’ opponents by the consolidation.” 

Id. at 26. Moss argued that the jury knew 

what the widows had lost during the liability 

phase of the bifurcated trial, but had no idea 

of the extent and severity of his injuries, since 

he could not introduce that evidence. 

In affirming the trial court’s decision to 

consolidate and bifurcate, the Sixth Circuit 

stated: 

There are not a few who question the wisdom 

of employing Rule 42(b) to divide 

personal injury damage actions into separate 

trials of the liability and damages 

issues, whether submitted seriatim to 

the same jury or to different juries. Some 

look upon the practice as but another 

procedural ‘gimmick’ designed to assist 

current judicial efforts to mass produce 

dispositions of pending cases, but which 

merely multiplies the burden of litigation. 

They feel that the occasional good 

it produces is greatly outweighed by the 

danger of unfairness being visited upon 

litigants who from right motives prefer 

to try their suits in traditional fashion. 

However, whatever academic disagreement 

there may be on that point, it seems 

now to be established that under Rule 

42(b) a trial judge had right within his 

discretion to do what was done here. 

Id. at 25 (internal citations omitted). 

Another Sixth Circuit case, Helminski v. 

Ayerst Laboratories, held that bifurcation 

was appropriate when evidence pertinent 

to the issues of liability and damages was 

wholly unrelated and evidence relevant to 

damages could have a prejudicial impact 

on a jury’s liability determination. 766 F.2d. 

208 (6th Cir. 1985). The plaintiff in Helminski 

was a severely disabled child whose 

parents sued, claiming that his in utero

exposure to a medication manufactured by 

the defendant caused those disabilities. The 

case is notable for another reason, however. 

In it, the Sixth Circuit discussed whether a 

trial court could exclude the litigant from 

attending the liability phase of a bifurcated 

trial if it determined that the plaintiff’s 

presence would substantially prevent 

or impair a jury from performing its duties. 

While the Sixth Circuit found that the trial 

court should not have barred the plaintiff 

from the liability phase of the trial, it also 

determined that this was a harmless error, 

since his condition rendered him unable to 

assist meaningfully with the prosecution of 

the case, and the circuit court affirmed the 

defense verdict. 

In Zofcin v. Dean, the plaintiff was 

injured and his wife and two children were 

killed in an auto accident. 144 F.R.D. 203 

(S.D.N.Y. 1992). The defendant stipulated 

to causation and moved to bifurcate. The 

trial court granted the defendant’s motion 

to split the liability and damages phases 

of the trial. Over the plaintiff’s objections, 

the court found bifurcation proper, since 

the plaintiff intended to “offer detailed evidence 

of extreme pain and suffering, including 

burning flesh and screams of pain.” 

Id. at 205. This posed a “substantial risk of 

impairing the jury’s objectivity on the liability 

issue.” Id. The Zofcin facts were horrific—a 

father and husband who suffered 

injuries himself and, more importantly, 

who witnessed the deaths of his family 

in the same accident. It presents a classic 

example of a situation in which a jury 

would likely become overwhelmed by damages 

evidence without bifurcation. 

Other Considerations in Deciding 

Whether to Bifurcate 

In McKellar v. Clark Equipment Company 

v. Lime Products Corporation, the plaintiff 

was left quadriplegic and incurred significant 

economic damages as the result of an 

accident. 101 F.R.D. 93 (D. Me. 1984). The 

severity of the damages was not in question, 

but liability was hotly contested. The 

defendant sought to separately try the issue 

of liability from the damages issues on the 

bases of avoiding prejudice and judicial 

economy. The plaintiff opposed the motion, 

arguing that bifurcation was unnecessary 

to avoid prejudice and unlikely to result in 

time savings. 

In granting the defendant’s motion to 

bifurcate, the court considered several factors, 

including: 

Whether a separation of the issues for 

trial will serve to expedite the disposition 

of the action and to conserve 

trial time and other judicial resources, 

whether such separation will be likely 

to avoid prejudice to any party at trial 

that may occur in the absence of separation 

of the issues, and whether the issues 

to be separated are essentially independent 

of each other for evidentiary purposes 

so that there will be no need to 

duplicate the presentation of significant 

areas of the evidence in the separated 

proceedings. 

Id. at 94. 

The court determined that bifurcating 

the trial would “obviate likely prejudice 

to the defendant on the determination of 

the liability issues, will conserve judicial 

resources, and will occasion no prejudice 

to Plaintiff in the orderly and effective presentation 

of his case.” Id. at 94. The court 

further stated that the plaintiff’s physical 

injuries and lengthy treatment could 

“adversely and improperly affect a jury’s 

fair, impartial and objective consideration 

of the liability issues.” Id. at 95. Regarding 

judicial economy, the court noted that since 

the main dispute was liability, a plaintiff’s 

victory on that issue against one or both of 

the defendants was likely to “greatly facilitate” 

a voluntary settlement by the losing 

party. Id. at 95. 

While not recognized as a circumstance 

permitting bifurcation under Rule 42(b), 

the McKellar court’s comment about the 

likelihood of settlement if the defense lost 

the liability phase of the case probably 

reflects reality. When a defendant pins its 

hopes on a liability defense that proves 

unsuccessful, it often chooses to settle a 

case rather than go forward with a trial 

on damages that will almost certainly end 

badly. 

New York’s federal courts have consistently 

recognized several additional factors 

that a court should consider when 

determining whether bifurcation is proper, 

including “(1) whether the issues are significantly 

different from one another; (2) 

whether the issues are to be tried before a 

jury or to the court; (3) whether the posture 

of discovery on the issues favors a single 

trial or bifurcation; (4) whether the documentary 

and testimonial evidence on the 

issues overlap; and (5) whether the party 

opposing bifurcation will be prejudiced if it 

is granted.” Dallas v. Goldberg, 143 F. Supp. 

2d 312, 315 (S.D.N.Y. 2001). The Dallas 

court noted that “bifurcation remains the 

exception rather than the rule,” however, 

and denied the defendants’ request. Id. 

“The additional expenses 

of time and resources 

might be unnecessary if 

determination of the fault 

issues made the damages 

issues moot or enhanced 

the prospects of settlement.” 

Promoting Judicial Economy: A 

Strong Argument for the Defense 

Betts v. General Motors Corp., is a wrongful 

death and personal injury case resulting 

from a motor vehicle accident. 689 P.2d 

795 (1984). The case involved a high-speed, 

head-on collision between a 1974 Ford pickup 

truck and a 1973 Chevrolet Monte Carlo 

that was towing a 1972 Chevrolet Vega with 

a rented U-Haul trailer hitch and tow bar. 

The accident was caused by the Ford pickup 

driver’s negligence. He lost control of his 

vehicle when he apparently fell asleep. Five 

members of the plaintiffs’ family were passengers 

in the Monte Carlo. A fire broke out 

after the collision, and, except one five-yearold 

child, the plaintiffs’ family died. The 

driver of the Ford pick-up was also killed. 

The plaintiffs sued General Motors for 

faulty product design and manufacturing 

and for negligence in installing the fuel 

tank in a place where the plaintiffs claimed 

that it would likely rupture in a collision 

and cause a gasoline fire. General Motors 

moved to bifurcate the liability and damages 

issues so that a jury first could determine 

liability, if any, of General Motors, 

U-Haul and the Kansas Turnpike Authority. 

The trial court allowed a bifurcated 


Trucking Law 

trial, and the jury decided that General 

Motors was not liable. 

The plaintiffs argued on appeal that 

the trial court had abused its discretion in 

ordering bifurcation. The Kansas Supreme 

Court found no error, noting that the trial 

court pointed out the advantages of a bifurcated 

trial—that it would help the jury 

comprehend the issues, economize the 

Although discretionary, 

a trial judge must consider 

the merits of each individual 

case when granting or 

denying bifurcation. 


court’s time, and reduce the parties’ trial 

expenses. The supreme court affirmed the 

trial court’s bifurcation order, which found 

that “the additional expenses of time and 

resources might be unnecessary if determination 

of the fault issues made the damages 

issues moot or enhanced the prospects 

of settlement.” Id. at 802. 

In Marshall v. Williams, the North Carolina 

Court of Appeals approved an order 

initiated by the trial judge to bifurcate a 

personal injury action. 574 S.E.2d 1 (2002). 

The case involved a collision between a 

truck and a boy on his bicycle. The trial was 

bifurcated to consider all issues related to 

negligence before proceeding with a trial 

on the damages. 

Arguing against bifurcation, the plaintiff’s 

attorney took the position that the 

jury needed to see the “entire picture of the 

accident” and that to prove negligence the 

plaintiff would have to prove that the boy’s 

damages were proximately caused by the 

negligence of defendant. In response, the 

defendant stipulated that the boy’s injuries 

were the direct result of the accident. 

The court bifurcated the trial “for the 

purpose of judicial economy, for the ease of 

understandability and presentation to the 

jury, and… after lengthy consideration of 

the best presentation of this matter.” Id. at 4. 

At trial, the court granted a directed verdict 

in favor of defendant on the issue of negligence. 

The North Carolina Court of Appeals 

upheld the trial court’s decision to bifurcate, 

noting that a trial judge’s discretion in separating 

trials is extremely broad. 

Even “Simple” Cases 

Can Be Bifurcated 

Sometimes plaintiffs oppose bifurcation, as 

in Hunter v. McDaniel Construction Company, 

by arguing that their case is the result 

of a “simple vehicular collision,” and, as 

such, does not meet bifurcation criteria. 

623 S.W.2d. 196, 198 (1981). The Arkansas 

Supreme Court has disagreed. It held 

that bifurcation of liability and damages 

in a personal injury action was “common” 

in federal and state courts and did not 

infringe on the constitutional right to a jury 

trial. Id. The court also noted that “the primary 

concern is efficient judicial administration, 

rather than the wishes of the 

parties, as long as no party suffers prejudice 

by bifurcation.” Id. at 198. 

Trucking cases may seem “simple” to 

courts, and plaintiffs’ attorneys may try 

to depict them that way. The truth is often 

different, however. For example, trucking 

cases often involve the Federal Motor 

Carrier Safety Regulations, for instance, 

whether a carrier violated them and, if so, 

whether that violation was a proximate 

cause of an accident. Expecting jurors to 

parse evidence of regulatory violations 

when determining liability and then asking 

those same jurors to ignore that evidence 

when deciding compensatory damages is 

optimistic at best. Educating a court about 

the complexity of your case can be crucial 

when trying to win a bifurcated trial. 

Stipulating to Other Issues 

to Win Bifurcation 

Sometimes, you might need to stipulate 

some issues to win bifurcation. One case 

that illustrates this strategy is Fisher v. 

Northland Insurance Company, which involved 

a fatal trucking accident and in 

which the Court of Civil Appeals of Oklahoma 

upheld bifurcation of liability and 

damages. 23 P.3d 296 (2000). The plaintiff, 

the personal representative of her granddaughter’s 

estate, sued a trucking company 

and its insurance carrier. Granting a motion 

by the defense, the trial court bifurcated the 

issues of liability and damages and further 

bifurcated the plaintiff’s claims against the 

insurer until the jury decided the liability 

question. The jury found in favor of the 

trucking company. The plaintiff argued that 

evidence of her relationship with her granddaughter 

was necessary to prove that she 

was an appropriate personal representative. 

The defendants stipulated that the plaintiff 

had the legal ability to bring the suit, dispensing 

with the plaintiff’s arguments. The 

plaintiff could not show that bifurcation was 

prejudicial to her, and the appeals court affirmed 

the trial court’s decision. 

Fisher is also a classic example of a 

trucking case bifurcation. It involved the 

death of a child, questionable liability, and 

coverage issues. The court wisely chose to 

try liability first, and second, have the jury 

decide damages and coverage, if needed. 

After hearing the negligence case, the jury 

found for the defense, and the jury did not 

need to sort through coverage and damages 

evidence to conclude the case. 

Bifurcation as Court Practice 

Requires Informed Discretion 

Courts must generally adhere to particular 

principles when granting bifurcation, as 

illustrated in Lis v. Robert Packer Hospital, 

in which a four-month-old child was taken 

to the emergency room with breathing difficulties 

after possibly aspirating food. 579 

F. 2d 819 (3d Cir. 1978). On arrival at the 

hospital, a doctor’s examination revealed 

extremely high blood sugar levels, and the 

baby was diagnosed with diabetes. Next, 

the baby received 15 insulin injections. 

Shortly after receiving the injections, the 

baby experienced serious seizures, which 

led to severe brain damage and mental 

retardation. At the time, the emergency 

room examining doctor thought that the 

child would also experience blindness. The 

doctor’s diagnosis and treatment was later 

proven erroneous, and the family sued the 

hospital and the physician. 

The case was tried in the Middle District 

of Pennsylvania. The trial court, as was its 

“usual practice,” ordered the case to go to the 

jury first on the issue of negligence. Id. at 823. 

Over the plaintiffs’ objection, the trial court 

stated: “I bifurcated it because we bifurcate 

all negligence cases, and I think everybody 

is more fairly treated that way.” Id. 

During the bifurcated trial, the defense 

argued that the baby’s seizures were not the 

result of the insulin injections, but of a pre-

existing congenital brain disorder. The jury 

found the treating physician negligent, but 

found no proximate cause. The plaintiffs 

appealed, and the Third Circuit held that it 

was improper for the lower court to adopt 

a general practice of bifurcating all negligence 

trials. The court stated that: 

A general policy of a district judge bifurcating 

all negligence cases offends the 

philosophy that a decision must be made 

by a trial judge only as a result of an 

informed exercise of discretion on the 

merits of each case. 

Id. at 824. 

The Third Circuit upheld the trial court’s 

decision to allow bifurcation in this case, 

however, noting that the plaintiffs did not 

show that bifurcation prejudiced them. 

The Third Circuit noted, however, that 

it would not necessarily require a showing 

of prejudice in future cases to overrule 

a trial court’s decision to bifurcate if the 

trial court failed to demonstrate that it had 

exercised informed discretion. Id. at 825. 

This opinion illustrates that although discretionary, 

a trial judge must consider the 

merits of each individual case when granting 

or denying bifurcation. 

Courts Can Initiate Bifurcation 

A court can initiate bifurcation. Further, 

even if both parties oppose bifurcation, a 

court can find that it is appropriate given 

the circumstances of a particular case. For 

example, in Hosie v. Chicago & N.W. Ry. 

Co., the trial court initiated and ordered 

bifurcation on the issues of liability and 

damages one day before the trial, over the 

objection of both the plaintiff and the defendant. 

282 F.2d 639 (7th Cir. 1960). The 

defendant prevailed on the issue of liability 

at trial, and the plaintiff appealed, arguing 

that bifurcation deprived him of his constitutional 

right to a trial by jury. 

In affirming the trial court’s decision to 

bifurcate and rejecting the plaintiff’s constitutional 

argument, the Seventh Circuit 

held that the procedural rules in place when 

the Bill of Rights was adopted were not set 

in stone and, just as with rules on the form 

of pleadings, they could be changed. In 

support of bifurcation, the court stated: 

Many of the federal district courts of this 

country are laboring under the heavy 

burden of crowded trial dockets. The 

Northern District of Illinois is no exception. 

The judges of that court should be 

commended for their search for methods 

and means to expedite the disposition of 

cases upon their calendars. There is no 

doubt that in numerous cases, the severing 

of the issue of liability from the issue 

of damages will result in the shortening of 

the time of trial. The instant case is a good 

example. Without such severance, hours 

or even a day or two might have been consumed 

on the issue of damages. 

Id. at 643. 

Bifurcation initiated by a court, however, 

is the exception, rather than the rule, and 

the best practice is to request bifurcation 

rather than hope that a court will decide 

to split a trial. 

Damages as an Essential 

Liability Element 

With all this said, achieving bifurcation 

creates challenges when damages are an 

essential element of a liability claim, as 

exemplified by Miller v. Fairchild Industries, 

Inc., in which two employees sued 

their employer, alleging that they were 

discharged from their jobs in retaliation 

for filing discrimination charges with the 

Equal Employment Opportunity Commission. 

885 F.2d. 498 (9th Cir. 1989). Among 

other claims, the plaintiffs sought redress 

for intentional infliction of emotional distress. 

The Ninth Circuit held that the facts 

supporting the intentional infliction of 

emotional distress claim were “so intertwined 

with liability” that bifurcation was 

improper. Id. at 511. Specifically, the Ninth 

Circuit noted that a finding of liability for 

intentional infliction of emotional distress 

required that the fact finder determine that 

a plaintiff in fact had suffered emotional 

distress. As such, the court determined that 

separating the issues would create confusion 

and uncertainty for the jury, rendering 

separation inappropriate. 

Beware the Demand for a Jury Trial 

At least one court has relied, in part, on a 

defendant’s demand for a jury trial in denying 

a motion to bifurcate in a trucking accident 

case. Fetz v. E&L Truck Rental, 670 F. 

Supp. 261 (S.D. Ind. 1987). In this case, as a 

result of the accident the plaintiff sustained 

brain damage that left her in a permanent 

vegetative state. Noting that bifurcation 

typically only shortened trials if the defense 

won on liability, the trial court found that 

the trucking company had “not demonstrated 

that its probability of prevailing in a 

separate trial of liability is sufficiently substantial 

to warrant ordering a bifurcated 

trial in this case based on ‘judicial economy’” 

Id. at 266. 

The court next discussed the defendant’s 

concern about prejudice, should a jury hear 

the full case. After writing that “the defendant’s 

sudden lack of faith in the jury system 

must be viewed with skepticism given that 

the defendants themselves demanded a 

jury trial in this case,” the court denied the 

request to bifurcate. 

While an uncommon basis for denying 

a motion to bifurcate, the Fetz court’s 

logic would require the defense to decide 

whether prejudice is likely when you file 

an initial pleading and when you decide 

whether to request a jury trial. 

Conclusion 

Lest you believe after reading the cases discussed 

above that courts frequently grant 

bifurcation, remember that there is essentially 

a presumption against it. While not 

dealing specifically with bifurcation under 

Rule 42(b), the United States Supreme 

Court in Miller v. Am. Bonding Co., wrote 

that “the general practice is to try all the 

issues in a case at one time; and it is only 

in exceptional instances where there are 

special and persuasive reasons for departing 

from this practice that distinct causes 

of action asserted in the same case may be 

made the subject of separate trials.” 257 

U.S. 304, 308 (1921). 

In defending your client, a motion to bifurcate 

a trial can offer an important tool. 

Separating consideration of issues at trials 

may give your client some predictability and 

save time and money in certain circumstances. 

While you should decide to move 

to bifurcate on a case-by-case basis, generally 

serious personal injury lawsuits resulting 

from trucking accidents lend themselves 

to bifurcation as much as any other. When 

you and your client believe that bifurcation 

would prove useful, consider a bifurcation 

motion from the start of a case and use discovery 

to develop arguments to support it. 

Bifurcation may be an uncommon remedy, 

but it could help alleviate your clients’ concerns 

about facing a jury in a catastrophic 

trucking accident case. 


Trucking Law 

Secondary Targets 

By Benjamin T. Owings 

Extended 

Liability for 

Extended Loads 

Shippers may 

find themselves in 

plaintiffs’ crosshairs 

based on theories of 

agency, joint liability 

and negligence per se. 

When a truck is involved in an accident it seems obvious 

to point the finger at a driver and carrier as responsible. 

Certainly the driver or carrier has the most 

control over the operation of the rig. The driver and the 

carrier are responsible for ensuring the 

security of the load. However, a plaintiff’s 

counsel looking for either a deep pocket or 

multiple pockets may seek to extend liability 

to parties shipping goods or materials. 

It is not at all uncommon for manufacturers, 

producers or even retailers to contract 

with independent haulers to carry 

products or raw materials to customers, 

facilities or factories. While a driver has 

ultimate responsibility for ensuring the 

safety of a load and operation of the truck 

transporting that load, a shipper may also 

face claims based on the actions of a driver 

or carrier. Shippers and manufacturers frequently 

load products on trailers for haulers. 

A driver may be involved, watch others 

load a trailer, or might even pull up, hook 

up and leave. What is the liability of a shipper 

when a truck is then involved in an 

accident 

Certainly a shipper may face liability 

for its actions and involvement in loading 

or operating a truck. However, a shipper 

is unlikely to independently face a liability 

claim. Probably the most common 

claim that a shipper would face is agency 

liability. Enterprising plaintiffs’ counsel 

may assert other claims, however, in situations 

in which traditional agency principles 

won’t apply or as a means to cover all their 

bases. Joint enterprise theories and negligence 

per se claims based on alleged statutory 

or regulatory violations may also arise 

and present thorny issues for shippers. This 

article will examine some of these vicarious 

liability claims that shippers might face 

based on the actions of drivers or carriers. 

Hypothetical 

Imagine a situation in which a manufacturer 

of industrial joists and beams contracts 

with an independent hauler to deliver 

its product. The carrier leaves a set number 

of empty flatbed trailers at the factory. The 

manufacturer calls the carrier to let it know 

when it will have a load ready to leave. The 

manufacturer places the joists on the trailers. 

Some of the joists are over-sized and 

hang off the back of the trailers. Drivers 

n Benjamin T. Owings is a partner in the Richmond, Virginia, office of Taylor & Walker P.C. He has represented clients in matters 

such as premises liability, automobile and large truck accidents, professional liability, coverage issues, product liability, insurance 

bad faith and workers’ compensation, and has wide experience in state and federal trial and appellate courts. In addition to DRI 

and its Trucking Law Committee, Mr. Owings is also a member of the Virginia Association of Defense Attorneys. 


may supervise the placement and oversee 

the placement, however, more often than 

not, they pull up, hook up and leave. The 

drivers only chain or strap down the load 

before driving away. The carrier chooses 

the drivers and routes. The carrier obtains 

all necessary permits. The carrier is paid 

a set fee based on the length of a trip. Subsequently, 

a truck hauling an over-sized 

load flips over when the load shifts while 

negotiating a sharp turn in the road. What 

is the liability of the manufacturer in this 

situation 

Agency Liability 

Agency claims are fairly common and usually 

the first thought that arises when a 

truck is involved in an accident. Under general 

agency principles the questions revolve 

around the relationship between a carrier 

and the shipper. Whether or not the carrier 

is considered an agent or independent 

carrier will depend on the facts surrounding 

this relationship. What control did the 

shipper have over the carrier’s operation 

How did the shipper pay the carrier Did a 

contract exist and, if so, what does it say 

Who chose the route taken, or was a choice 

involved at all Who chose the driver Did 

the carrier and driver have an established, 

ongoing relationship and, if so, what was 

the practice between the parties 

Larson v. Bayside Timber, 589 N.W.2d 

456 (Wisc. App. 1998), involved claims of 

vicarious liability against a timber company 

due to the allegedly negligent actions 

of a hauling company retained to transport 

logs. Bayside defended on the basis that the 

hauler was an independent contractor. The 

court noted that the distinction between an 

agent and independent contractor largely 

rested on the issue of control. In this case, 

the court found that the hauler used its own 

trucks and controlled the hauling operational 

details. The hauler chose the drivers 

and the routes that they would take. 

Bayside only exercised control in the limited 

sense that it paid for a service and had 

the right to demand performance of that 

service. Merely establishing the end, hauling 

of a product, but not the means to that 

end, how the product was hauled, did not 

create vicarious or agency liability. 

Similarly, in Shoemaker v. Elmhurst- 

Chicago Stone Company, Inc., 652 N.E.2d 

1037 (Ill. App. 1994), a shipper of materials 

was alleged to have agency liability for 

the negligence of a truck driver employed 

by Lawrence Trucking. Elmhurst defended 

claiming that that the driver was an independent 

contractor. Elmhurst’s dispatcher 

would call Lawrence, along with other companies, 

and request trucks for the following 

day to make deliveries of products to customers. 

No written contract was in place 

between Elmhurst and Lawrence or any 

other hauler. Lawrence would lease drivers 

and equipment to make the deliveries. 

Elmhurst employees sometimes loaded 

the trucks, but the truck drivers could 

do so themselves, using Elmhurst equipment. 

Elmhurst would weigh the trucks 

before they left the facility and might pass 

on directions to delivery sites, if provided 

by customers. Once the trucks left the 

plant, Elmhurst had no contact with them. 

Elmhurst did not have the right to discharge 

a truck driver based on complaints. 

The court held that the driver involved 

in the accident was not Elmhurst’s agent. 

Again, in this case, the court’s decision 

centered on the issue of control. Elmhurst 

lacked the right to control the manner in 

which the hauling was performed. It did 

not hire or select drivers. It did not choose 

routes or the means by which the deliveries 

were made. The court noted that merely 

weighing the vehicles or assisting with or 

overseeing the loading of the vehicles did 

not create an agency relationship. In fact, 

these activities were merely preliminary 

tasks before the driver could begin to perform 

his work. Giving the delivery destination 

to the driver did not control the 

manner of the work, rather, it merely specified 

the task to be performed. 

In most situations a contract of some 

type will exist between a shipper and its 

carrier. How detailed the contract is will 

vary. In a situation in which a shipper uses 

a carrier infrequently, the contract may 

only consist of a boilerplate agreement 

or invoice for services. With an ongoing 

relationship between a shipper and carrier, 

a written contract or agreement will 

more likely exist. A contract is certainly 

the best evidence regarding the relationship 

between the parties. 

Regardless of the type of contract, from 

a shipper’s perspective, to avoid agency 

liability, a contract should place all or as 

much of the decision- making authority 

and responsibility as possible on the carrier. 

Even though most state courts hold 

that contract language does not determine 

agency or independent contractor status, 

defining the relationship as such in a contract 

certainly provides good evidence. In 

the same vein, a contract should specify 

that a carrier will decide driving routes and 

choose drivers. If a shipper dictates routes 

A contract is certainly 

the best evidence 

regarding the relationship 

between the parties. 

or drivers used by a carrier, an attorney can 

use that control as evidence of agency. 

In the hypothetical situation described 

on page 34, the manufacturer would certainly 

face a claim of agency liability. However, 

it would appear to have much good 

evidence to successfully defend an action. 

The carrier is defined as an independent 

hauler, obtains permits and chooses routes 

and drivers. The carrier uses its own equipment. 

Merely calling for deliveries and 

loading the trailers will not likely give the 

carrier or driver agent status. The manufacturer 

may have liability for its own 

actions, should they prove a causative factor; 

however, that is a different issue. 

Joint Enterprise 

Knowing that a shipping agreement or 

hauling contract is likely in place, many 

plaintiffs’ counsel may also argue that a 

hauling arrangement constitutes a “joint 

enterprise” or “joint venture.” Under the 

Restatement (Second) Torts §491, to constitute 

a joint enterprise an arrangement 

must have an agreement among two or 

more parties to carry out both a common 

purpose and common pecuniary interest 

and parties must equally share control in 

determining how the enterprise will carry 

out its business. A joint enterprise is sometimes 

similar to an informal partnership, 

but limited to a narrow purpose and a more 

limited time. The agreement between the 

parties is of paramount importance. 


Trucking Law 

Crunk v. Dean Milk Co. Inc., 2008 U.S. 

Dist. Lexis 7076 (E.D. Ky. 2008), involved 

a plaintiff injured by the actions of a delivery 

driver. Dean contracted with Quickway 

to transport and deliver its product 

throughout the United States. The contract 

provided that Quickway would perform all 

services as an independent contractor and 

that neither Quickway nor its employees 

The more shippers try to 

monitor and control actions 

of carriers, the more they 

may open themselves to 

liability based on an agency 

or joint enterprise theory. 

were employees of Dean or joint venturers 

with Dean. The agreement also provided 

that Quickway had exclusive control over 

the drivers and equipment. Further, Quickway 

agreed to provide a certain number of 

drivers and tractor cabs. Dean provided the 

trailers and agreed to load the trailers for 

delivery. The plaintiff claimed that Quickway 

and Dean were joint venturers, along 

with a claim of agency liability. 

The district court noted that while negligence 

of one entity or person in a joint venture 

can be imputed to another, the court 

could not consider this situation a joint 

venture. Kentucky follows the Restatement 

elements for joint ventures. While the court 

didn’t specify how many of the Restatement 

elements an attorney must present to 

prove this imputed negligence, the court 

stated that under Kentucky law, the community 

of pecuniary interests was a necessary 

element. To satisfy this community of 

interest prong, those involved in an enterprise’s 

activities must share profits and 

losses. Examining the agreement between 

Dean and Quickway made it clear that they 

had no agreement to share profits or losses. 

Rather, Quickway was compensated pursuant 

to a formula in the contract. Further, 

Dean and Quickway did not have equal 

right to control the delivery. While Dean 


may have chosen the destination, Quickway 

chose the route and manner of the delivery. 

Thus, Dean merely selected the end but it 

did not control the means to that end. 

Control issues for an alleged joint enterprise 

were a large issue in North American 

Van Lines v. Emmons, 50 S.W.3d 103 (Ct. 

App. Tx. 2001). This case involved a moving 

van and motor vehicle accident. The 

moving van was owned by Lufkin Moving, 

but leased to North American. The plaintiff 

claimed that Lufkin and North American 

were engaged in a joint enterprise, and the 

jury had agreed. Texas follows the four elements 

from the Restatement. However, the 

court found on appeal that the fourth element, 

equal right to control, was an essential 

element and missing from the facts. The 

court held that when one party had overriding 

control, a joint enterprise did not exist. 

For instance, employee and employer and 

agency relationships do not constitute joint 

enterprises, since these relationships give 

one party control over the other. The court 

noted that a written contract generally governs 

the relationship of these parties. In 

this case, the contract made it clear that it 

was an agency relationship. Thus, a joint 

enterprise did not exist. 

On the other hand, in Spillane v. Wright, 

259 P.2d 1078 (Col. 1963), the court found 

that a joint enterprise did exist. Spillane 

owned several large and oversized pieces 

of earthmoving equipment that needed to 

be moved. Spillane contracted with Briggs 

Construction to move the equipment. 

Briggs provided the truck and the driver, 

but did not have the proper permits. Spillane, 

through a company engineer, obtained 

the necessary permits. Spillane’s engineer 

and the driver loaded the equipment on 

Briggs’ truck. Briggs’ driver misjudged 

the space on a bridge, struck the bridge 

and overturned on or drove into, plaintiff’s 

vehicle. 

Spillane argued that Briggs and the 

driver were independent contractors and 

that Spillane had no liability. The court 

found, however, that a joint enterprise 

existed, making Spillane liable. The test 

applied by the court was “whether they 

were so controlling the movements of the 

undertaking and not merely whether there 

existed a complete understanding as to 

their real authority.” Id. at *1081. The court 

found that Spillane’s actions in overseeing 

and assisting in the loading of the vehicle 

and obtaining the permits indicated that 

Spillane had equal authority to act for all 

parties. Moving large and oversized pieces 

of equipment held a particular and unusual 

hazard in the eyes of the court and liability 

for negligence for the operation should fall 

on all involved. 

As with agency issues, joint enterprise 

liability will revolve, many times, around 

the issue of control and the agreement 

among the parties. As with agency, if a contract 

or hauling agreement exists, a shipper 

is well advised to place as much responsibility 

for operational details as possible on 

a carrier or hauler. Merely providing information 

about where a carrier must deliver 

a product will not impose liability. This 

only makes sense. Why on earth would you 

hire a carrier if you didn’t need your product 

to go somewhere In addition, specifically 

delineating how a carrier will be paid 

is important. Payment based on a set fee or 

formula provides necessary evidence disproving 

shared profits and losses. 

Defining a relationship in the contract is 

also helpful. While not definitive, it is some 

evidence of relationship among parties. Of 

course, the actual conduct of the parties 

will ultimately define the relationship. If a 

shipper and carrier are intimately involved 

in how a project is performed, such as in 

Spillane, the shipper will likely have liability 

as part of a joint enterprise. In short, 

you will want to shift as much control as 

possible to a carrier to protect a shipper. 

Statutory Violations 

Most states have statutes regulating the 

size and weight of vehicles operating on the 

roadways. Local governments and municipalities 

may have ordinances that restrict 

use of vehicles according to size and weight 

even further. While the Federal Motor Carrier 

Safety Regulations make a driver and 

a carrier primarily responsible for securing 

a load and obeying weight and size restrictions, 

enterprising plaintiffs’ counsel may 

also seek to impose liability under state and 

local statutes to other parties when overweight 

or oversized vehicles are involved. 

State statutes regarding overweight vehicles 

vary in terminology, thus liability for 

persons or parties not directly involved 

in a vehicle’s operation will vary. State of 

South Dakota v. Myrl & Roy’s Paving, Inc.,

686 N.W.2d 651 (2004), involved liability 

for violations of South Dakota’s overweight 

vehicle statutes. Myrl & Roy’s was involved 

in heavy construction and owned its own 

quarries, along with several trucks. One of 

Myrl & Roy’s trucks was cited for operating 

an overweight vehicle. Both the driver 

and Myrl & Roy’s received citations, and 

the judge imposed civil penalties against 

Myrl & Roy’s under SDCL 32-22-55, which 

creates a civil penalty against “any person 

who is convicted of operating a motor vehicle” 

in an overweight condition. 

Myrl & Roy’s argued that the statute 

did not apply to the company or owner 

of the vehicle, but only the driver. The 

Supreme Court of South Dakota considered 

the entire statutory scheme, and noted that 

it did not clearly identify its specific applicability 

to “drivers” or “owners.” However, 

the statute had to apply to someone. Considering 

the terms in the statute, the court 

noted that it imposed liability on a person 

convicted of “operating” an overweight 

vehicle, and “Thus, the statutes leave room 

for any person who is engaged in vehicle 

operations.” Id. at *654. 

Similarly, Becker v. Commonwealth¸ 19 

Va. App. Lexis 715 (1999), imposed liability 

on an individual not directly involved 

in operating a vehicle. Here, Becker was an 

account representative for a steel erection 

company. He received a call at 5:00 a.m. 

from a customer requesting that a crane 

be delivered “right now.” Becker called and 

arranged for immediate delivery. However, 

the crane was of such a size that its permit 

only allowed operation on the roads one-half 

hour after sunrise and one-half hour before 

sunset. The crane was stopped by the police 

at 6:20 a.m., 19 minutes before sunrise. 

The crane operator, the company and 

Becker were all cited for the illegal operation. 

Becker argued that he was not actually 

operating the crane and could not, 

therefore, be held responsible. The Virginia 

Court of Appeals rejected this argument, 

noting that he was “the instigator who set 

the violation in motion.” The court noted 

that even though he did not operate the 

crane, it was Becker’s instigating actions 

that resulted in the permit violation. Thus, 

he was subject to individual liability. 

The above cases involved parties implicated 

in the operations of the vehicles, 

although they did not all actually operate 

these vehicles, highlighting the potential 

exposure of parties not traditionally 

considered liable for incidents involving 

trucks. Neither case involved a motor vehicle 

accident. However, liability for statutory 

violations could easily form the basis 

for negligence per se claims. Neither case involved 

the shipper’s liability. However, some 

states have gone so far as imposing civil 

penalties against a shipper for overweight 

vehicle violations. For instance, Minnesota 

Statute §169.871 imposes civil penalties 

against the owner, lessee or shipper who 

ships or tenders goods for shipment in a vehicle 

that exceeds the state’s weight limits. 

Minnesota’s statute allows a “good faith” 

exception for shippers. On the other hand, 

some statutory schemes can allow for imposition 

of claims against parties not involved 

in the operation of the vehicle. 

Although stated vaguely, in Trinity Universal 

Insurance Co. v. Mallard Truck Lines, 

340 So. 2d 372 (1976), the plaintiff alleged 

that third parties were liable for overweight 

vehicle violations by a trucking company. 

This case involved a fatal accident between 

a car and dump truck hauling sand and 

gravel for a road project. The plaintiff filed 

sued several parties involved in the road 

project, including the general contractor, 

T.L. James. James had contracted with another 

party to provide all of the sand and 

gravel for the project. That party then subcontracted 

the fulfillment of the contract. 

James did not own or control the sand and 

gravel pits, nor did James load the trucks. 

James did not own the trucks and did not 

employ the drivers. The sand and gravel was 

delivered to a central point and weighed, by 

James’ employees, on delivery. As a general 

rule, the trucks were all overweight. 

Among the claims asserted by the plaintiff 

was that James had knowledge of the 

overloading, a violation of state law, and 

had a duty to stop the overloading or refuse 

delivery. The Louisiana Court of Appeals 

rejected this argument and likened the situation 

to a landowner who ordered fill dirt 

and realized that some of the deliveries 

were overloaded, but did nothing to stop 

it. The court reasoned that James had no 

direct control over the loading process and, 

thus, had no duty to stop the overloading of 

the trucks or refuse delivery. 

Statute- based negligence per se claims 

are, perhaps, limited and somewhat remote. 

However, they can rise when a shipper 

is involved in truck loading or even if a 

shipper and carrier have an ongoing relationship. 

If a carrier engages in alleged 

ongoing violations, a plaintiff may claim, 

as in James, that the shipper had knowledge 

of the violations and should have 

taken actions to stop them. Given most 

overweight statutes, plaintiffs may have to 

stretch. However, the more shippers try to 

monitor and control actions of carriers, the 

more they may open themselves to liability 

based on an agency or joint enterprise theory, 

still presenting a Catch-22. 

Conclusion 

Most of the time plaintiffs will primarily 

targets drivers and carriers in actions arising 

from truck accidents. However, shippers 

also find themselves in the crosshairs based 

on theories of agency, joint liability and negligence 

per se. Carefully drafting contracts 

and placing responsibility can help to protect 

a shipper from such claims. 


Trucking Law 

Behind the Curtain 

By John Lomax Anderson 

and Bobbie M. Guerra 

The FMCSA 

Medical Regulations 

Process 

It is more important 

than ever for motor 

carrier companies 

and defense counsel 

alike to stay on 

top of emerging 

medical issues. 

Discerning motor carriers and their counsel already 

appreciate the importance of monitoring Federal Motor 

Carrier Safety Administration (FMCSA) developments. 

More shrewd plaintiffs’ attorneys are becoming aware 

of this as well. But these developments are 

not always easy to stay on top of, given the 

complex, exhaustive, and frankly, slow regulatory 

process. This is all the more true of 

the FMCSA’s medical regulations. How can 

busy motor carriers and defense lawyers 

quickly and easily pinpoint the emerging 

medical trends most likely to impact hiring 

practices and litigation Perhaps the best 

way is to understand the FMCSA’s rulemaking 

processes by taking a peek behind 

“the curtain.” 

Overview of the FMCSA’s 

Rulemaking Process 

The rulemaking process starts in the 

FMCSA Office of Medical Programs, which 

promotes the safety of roadways through 

promulgating and implementing medical 

regulations, guidelines and policies. Federal 

Motor Carrier Administration, FMCSA 

Medical Programs, http://www.fmcsa.dot.gov/ 

rulesregulations/topics/medical/medical.htm. The 

Office of Medical Programs is the agency 

that identifies ripe medical standards and 

guidelines through analyses and evaluation. 

Federal Motor Carrier Safety Administration, 

Overview of the FMCSA Medical 

and Standards and Guidelines Development 

Process (July 2008), http://www.fmcsa. 

dot.gov/rulesregulations/topics/medical/Overview- 

FMCSA- MedStds- Process.pdf. Factors the Office 

of Medical Programs considers when 

identifying medical standards and guidelines 

include: whether a standard or guideline 

requires update; what the standard or 

guideline is in other countries; the standard 

or guideline in other modes of transportation; 

new diagnostic and treatment options; 

and safety issues critical to the public’s interest. 

Id. 

Once the Office of Medical Programs 

identifies a medical standard or guideline 

that it will study, it formulates research 

questions with input from the FMCSA 

Medical Review Board (MRB), an entity 


n John Lomax Anderson and Bobbie M. Guerra are attorneys with the Rincon Law Group, P.C., in El Paso, 

Texas. Mr. Anderson focuses on appellate practice in a broad range of complex FELA and catastrophic 

trucking, insurance coverage and automotive product liability issues. He edits In Transit, the newsletter of 

DRI’s Trucking Law Committee. Ms. Guerra practices general liability and transportation law and has extensive 

experience with fiduciary and toxic tort claims and dispositive issues relating to complex medical and 

scientific causation.

overseen by the Office of Medical Programs 

in accordance with the Federal Advisory 

Committee Act, and prepares a preliminary 

report. Id. The MRB is made up of five 

appointed members with expertise in varied 

medical specialties relevant to driver 

fitness requirements. 49 U.S.C. §31149. 

Next, the Office of Medical Programs 

submits the medical standard or guideline 

to a thorough analysis. Overview of the 

FMCSA. During this process the Office of 

Medical Programs reviews relevant medical 

literature and answers the key questions 

based on its findings. Id. On completing the 

analysis, the Office of Medical Programs 

prepares an evidence report that outlines 

the findings and recommends standards 

or guidelines. Id. The Office of Medical Programs 

next submits the evidence report to 

the MRB and to a Medical Expert Panel 

(MEP)—an independent panel of physicians, 

clinicians and scientists with expertise 

in a given field. Id.; and Federal Motor 

Carrier Safety Administration, Medical 

Expert Panels, http://www.fmcsa.dot.gov/rulesregulations/topics/mep/mep.htm. 

On receipt of the evidence report, an 

MEP analyzes the findings and the proposed 

recommendations and drafts independent 

recommendations. Id. In turn, the 

MRB convenes and holds a public meeting 

at which time a representative of a given 

MEP presents its recommendations to the 

MRB. Federal Motor Carrier Safety Administration, 

Medical Review Board, http://www. 

mrb.fmcsa.dot.gov/. The MRB then provides 

recommendations to the FMCSA administrator. 

Id.; see also Overview of the FMCSA. 

At the end of that process, the FMCSA considers 

the report initially prepared by the 

Office of Medical Programs and the recommendations 

by the MRB and MRE to 

determine a plan of action. Overview of 

the FMCSA. If the FMCSA concludes that 

it should implement or revise a specific 

medical standard or guideline, the FMCSA 

must provide a notice of the proposed rule 

and request public comments. Id. After the 

comment date closes, the FMCSA can issue 

a final rule. 

The FMCSA and Obstructive 

Sleep Apnea 

The FMCSA has long shown an interest in 

sleep apnea among commercial motor vehicle 

(CMV) drivers. The FMCSA Office of 

Research and Technology has sponsored 

various studies and published findings 

regarding sleep apnea, including A Study of 

Prevalence of Sleep Apnea Among Commercial 

Truck Drivers, published in 2002, and 

Sleep Apnea Crash Risk Study, published in 

2004. Most recently, on July 2, 2007, an evidence 

report titled Obstructive Sleep Apnea 

and Commercial Vehicle Driver Safety was 

completed, paving the way for the FMCSA 

to implement new standards or guidelines 

on obstructive sleep apnea (OSA). 

What Is Sleep Apnea 

Sleep apnea is a common disorder in which 

sleep is repeatedly disrupted due to pauses 

in breathing. American Sleep Apnea Association, 

Sleep Apnea Information, http:// 

www.sleepapnea.org/info/index.html. The disorder 

generally involves either recurring 

apnea, during which breathing completely 

stops, or hypopnea, during which someone 

experiences reduced airflow in the airway. 

Naresh M. Punjabi, et al., The Epidemiology 

of Adult Obstructive Sleep Apnea, 5 Proc. 

Am. Thorac. Soc. 136 (2008). Obstructive 

sleep apnea (OSA), one of the three recognized 

categories of sleep apnea, is the most 

common form, estimated to affect four percent 

of middle- aged males and two percent 

of middle- aged females. Terry Young, 

et al., The Occurrence of Sleep- Disordered 

Breathing Among Middle- Aged Adults, 328 

N. Eng. J. Med. 1230 (1993). 

OSA results from the repeated obstruction 

of or a narrowing in the oropharynx or 

the area at the base of the tongue. Victor D. 

Lyle, Obstructive Sleep Apnea, 60 Am. Fam. 

Physician 2279 (1999). This obstruction 

or narrowing during sleep results from tone 

loss in the muscles surrounding the airway 

that keep the airway open. Id. Insufficient 

breathing causes oxygen levels in the blood 

to fall and carbon dioxide levels in the blood 

to rise. Punjabi, et al. The brain senses these 

changes, and an individual either wakes up 

completely or enters a less deep sleep level, 

to facilitate breathing. Lyle. 

Several risk factors are associated with 

OSA in the general population. Obesity 

and age are the strongest sleep apnea risk 

factors. Studies reveal that the prevalence 

of OSA increases with age. In fact, individuals 

over 65 experience OSA at two to 

three times greater rates than individuals 

in middle age. Natalie Hartenbaum et al., 

The medical literature 

has shown an association 

between OSA and an 

increased risk of crashes 

involving drivers of 

passenger vehicles. 

Sleep Apnea and Commercial Motor Vehicle 

Operators, 48 J. Occup. Envtl. Med. 

871 (2006). Regarding obesity, the medical 

literature has shown an association 

between OSA and individuals who have a 

body mass index (BMI) of greater than 26. 

Id. Obesity places “mechanical loads” on 

the upper airway and respiratory system 

that cause narrowing, collapse or obstruction 

of the upper airway during sleep. Alan 

R. Schwartz, et al., Obesity and Obstructive 

Sleep Apnea: Pathogenic Mechanisms and 

Therapeutic Approaches, 5 Proc. Am. Thorac. 

Soc. 185 (2008). 

In addition, according to the medical 

literature, men are two to three times as 

likely to have sleep apnea than women. Id. 

Moreover, studies have noted that in persons 

with sleep apnea, sleep apnea is generally 

more severe in men than women. Id. 

Finally, the medical literature has shown an 

association between OSA and an increased 

risk of crashes involving drivers of passenger 

vehicles. 

Sleep Apnea’s Journey Through 

the FMCSA Rulemaking Process 

Given the literature on risk factors associated 

with OSA and the growing literature 

regarding OSA and motor vehicle drivers, 

the FMCSA Office of Medical Programs 

identified OSA as a topic of concern and 

formulated key questions pertaining to 

OSA for evaluation and scientific analysis. 

Those questions were: 

1. Are individuals with OSA at an increased 

risk for a motor vehicle crash when compared 

to comparable individuals who do 

not have the disorder 

2. What disease- related factors are asso- 


Trucking Law 

ciated with an increased motor vehicle 

crash risk among individuals with OSA 

3. Given the findings of Key Question 2, 

are individuals with OSA unaware of 

the presence of the factors that appear 

to be associated with an increased motor 

vehicle crash risk 

4. Are there screening/diagnostic tests 

available that will enable examiners to 

Allegations for negligent 

hiring or retention are a 

sure bet should a driver’s 

medical history involve 

benzodiazepines. 


identify those individuals with OSA who 

are at an increased risk for a motor vehicle 

crash 

5. Which treatments have been shown to 

effectively reduce crash risk among individuals 

with OSA 

6. What is the length of time required following 

initiation of an effective treatment 

for patients with OSA to reach a 

degree of improvement that would permit 

safe driving 

7. How soon, following cessation of treatment 

(i.e., as a consequence of noncompliance), 

will individuals with OSA 

demonstrate reduced driver safety 

Stephen Tregear, Director, Manila/ECRI 

Research Team, Presentation at Federal 

Motor Carrier Safety Administration 

Medical Review Board Public Meeting, at 

2–4 (Jan. 28, 2008), http://www.mrb.fmcsa. 

dot.gov/012808_meeting_present.htm (follow 

“Obstructive Sleep Apnea” hyperlink). 

After developing these key questions, 

the Office of Medical Programs directed a 

comprehensive study of the medical literature 

relating to OSA. On July 2, 2007, an 

evidence report titled Obstructive Sleep Apnea 

and Commercial Motor Vehicle Driver 

Safety was completed. The evidence report 

was then submitted to the MRB and the 

Sleep Apnea MEP for review. The Sleep Apnea 

MEP reviewed the evidence report and 

prepared its own recommendations. Federal 


Medical Expert Panel Reports, http://www. 

fmcsa.dot.gov/rulesregulations/topics/mep/mepreports.htm 

(follow “Sleep Disorders: Medical 

Expert Panel Recommendations (2007)” 

hyperlink). Afterwards, the MRB held a 

public meeting to discuss the MEP’s recommendations 

regarding OSA. Federal Motor 

Carrier Safety Administration, Meeting 

Summary of Medical Review Board Public 

Meeting on Sleep Apnea and Seizure Disorders 

(Jan. 28, 2008), http://www.mrb.fmcsa.dot. 

gov/documents/Fin_Meet_Min_Jan28_2008MRB_ 

Meet_Revised11-24-09.pdf. 

During the public meeting, the MRB 

heard a presentation by a representative of 

the Sleep Apnea MEP. The MRB also heard 

a presentation of the findings and recommendations 

contained in the evidence 

report. The MRB ultimately voted to recommend 

that the FMCSA require that CMV 

drivers with BMI’s of 30 or greater receive 

tests to determine if they have sleep apnea. 

Meeting Summary on Sleep Apnea, at 10. 

At this time the FMCSA is reviewing the 

evidence report, as well as the Sleep Apnea 

MEP’s recommendations, and the recommendation 

of the MRB. The FMCSA has 

not issued a response or proposed rule pertaining 

to OSA. The FMCSA has not timeline 

under which it must act. However, 

regardless of when the FMCSA chooses to 

act on OSA, the important question is, what 

does the FMCA’s focus on OSA mean for litigation 

involving CMV drivers 

Sleep Apnea and Accident Litigation 

Sleep apnea is quickly becoming a target of 

the plaintiffs’ bar in accident litigation, even 

though the FMCSA has not yet issued final, 

formal regulations. Of the currently existing 

regulations, only two come at all close to addressing 

even the general area of sleep apnea. 

Under 49 C.F.R. §391.41(b)(5) a driver cannot 

have an “established medical history or 

clinical diagnosis of a respiratory dysfunction 

likely to interfere with his/her ability to 

control and drive a commercial motor vehicle 

safely,” nor under 49 C.F.R. §391.41(b) 

(8), can a driver have any “other condition 

which is likely to cause a loss of consciousness.” 

Obviously, neither provision is specific 

to sleep apnea—and arguably, neither is 

even remotely close. Nonetheless, several recent 

motor carrier cases have involved highly 

contentious sleep apnea questions. 

One of these cases is Achey v. Crete Carrier 

Corp., No. 07-CV-3592, 2009, U.S. Dist. 

LEXIS 44353 (E.D. Pa. Mar. 30, 2009). The 

Achey case involved an extremely serious, 

multi- fatality accident that resulted when 

a commercial truck driver fell asleep at the 

wheel. The plaintiffs’ counsel attempted to 

create a punitive damages claim by asserting 

that the involved driver should not have 

been hired because he had disclosed that 

he had once received a sleep apnea diagnosis. 

The diagnosis, however, preceded the 

accident by approximately 15 years, and 

the driver had undergone a surgical, corrective 

procedure. Although a red herring, 

the driver’s sleep apnea condition became 

an important issue in the case. 

Ultimately, the Achey court saw through 

the hype and engaged in a careful analysis 

distinguishing sleep apnea and the plaintiffs’ 

evidentiary support for it from the 

requisites of 49 C.F.R. §391.41(b)(5), (b) 

(8):“No determination was ever made that 

[the truck driver] was suffering from respiratory 

dysfunction or a loss of consciousness 

that [precluded] him from driving 

under applicable regulations. Achey, 2009 

U.S. Dist. LEXIS 44353, at *15 (citing 49 

C.F.R. §391.41(b)(5), (b)(8)). Although, the 

court did allow the plaintiffs to assert punitive 

allegations against the driver individually, 

and thus against the carrier, under 

respondeat superior on other grounds. The 

court indicated, however, that if the plaintiffs 

had introduced better evidence tying 

fatigue and drowsiness to sleep apnea, the 

result might have been different. Id. at *11. 

For this reason, our side of the bar may well 

encounter the Achey case in the future, and 

it is one to be aware of. 

Other recent cases involving sleep apnea 

allegations have been litigated in Mississippi 

and in Texas. See U.S. Xpress, Inc. v. 

Am. Field Serv. Corp., No. 3:07CV13-SA, 

2008 U.S. Dist. LEXIS 57940 (N.D. Miss. 

June 26, 2008); and Simmons v. Bisland, 

2009 Tex. App. LEXIS 2473 (Tex. App.— 

Austin Apr. 9, 2009). In the Mississippi 

case, an argument for the partial exclusion 

of sleep apnea- related evidence was 

successfully based on the grounds that the 

relevant licensing agencies had, in fact, 

granted a commercial driver’s license to 

an apnea- diagnosed commercial driver: 

“The Court will not look behind an agen- 

Medical Regs, continued on page 74

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Trucking Law 

A Primer 

By Chris Pearson 

and G. Robert Sonnier 

Distracted 

Driving 

Issues 

Data from several 

studies can be used 

as a sword or a 

shield based on the 

facts of your case. 

It has become commonplace in our daily lives—a driver 

talking on a cell phone; a driver texting; a driver putting 

on make-up; a driver eating. Driver distractions present 

a real and increasing safety risk, and the lawyers and 

risk managers who handle such claims 

face a challenge in defending such matters 

in light of the increase in public awareness 

and new research on the topic. 

Although there is no generally accepted 

definition of “driver distraction,” the body 

of research on this issue settles on a definition 

generally consistent with that used 

by the International Standards Organization—“Attention 

given to a non- driving 

related activity, typically to the detriment of 

driving performance.” Ranney, T.A., Driver 

Distraction: A Review of the Current Stateof- 

Knowledge, (Document No. DOT HS 810 

704), Washington, D.C., National Highway 

Traffic Safety Administration USDOT 

(2008), at 2. Interest in the distracted driving 

issue, both from a government and 

private sector perspective, has increased 

dramatically in recent years. The majority 

of states have legislation that either bans or 

restricts the use of cell phones and other 

handheld devices while driving. Savage, 

M.A., et al., Transportation Series: Traffic 

Safety and Public Health State Legislative 

Action 2008, National Conference of State 

Legislatures, April 2009, No. 33. United 

States Secretary of Transportation Ray 

LaHood, announcing a partnership with 

the Federal Communications Commission 

to reduce distracted driving, recently 

stated, “My position on this epidemic is 

clear: We must put an end to distracted 

driving. It is costing us lives and inflicting 

injuries…. It’s wrong and I want to see it 

reduced.” Ray LaHood, United States Secretary 

of Transportation, Welcome to the 

Fast Lane: The Official Blog of the U.S. Secretary 

of Transportation, November 4, 2009, 

at http://fastlane.dot.gov. 

The recent discussion related to driver 

distraction is focused on the use of cell 

phones. While the issue is much broader 

than driver distractions caused by cell 

phone usage, this article will focus on cell 

phone usage- related distractions because 

much of the research and case law addresses 

the issue from that perspective. Studies of 


n Chris Pearson and G. Robert Sonnier are shareholders of Clark, Thomas & Winters in Austin, Texas. 

Mr. Pearson’s practice focuses on the defense of product manufacturers in a wide variety of litigation and 

administrative matters, including product liability, deceptive trade practice and “Lemon Law” cases. Mr. 

Sonnier’s practice focuses on the defense of product liability, trucking, premises liability, asbestos, and general 

liability cases.

cell phone usage in the United States suggest 

that cell phone use by drivers doubled 

between 2002 and 2005. On-road surveys 

conducted in 2008, which likely underestimate 

actual usage, suggest that at any 

given daytime driving moment six percent 

of all drivers are using cell phones. 

NHTSA Research Note, Traffic Safety Facts, 

Driver Electronic Device Use in 2008 (September 

2008). Cell phone usage by drivers 

in the most at-risk group, 18 to 24 years 

of age, hovers in the 8–10 percent range 

and is increasing at a faster rate than with 

drivers of other ages. Id.; Ranney at 13. 

Particularly troubling is the proliferation 

of text messaging, which is most prevalent 

among younger drivers and in simulated 

driving studies has been associated 

with a 400 percent increase in the amount 

of time a driver spends not looking at the 

road. Ranney at 15; Hoskins, S., et al., 

The Effects of Text Messaging on Young 

Driver Performance, Rep. No. 246, Victoria, 

Australia: Monash University Accident 

Research Center (2006). This and other statistics 

support Secretary LaHood’s characterization 

of driver distraction as an 

“epidemic” that adversely impacts transportation 

safety. The “epidemic” is clearly 

one of significance to fleet safety managers 

and attorneys who handle commercial 

vehicle litigation. 

In the United States in 2008, there were 

5,870 fatalities and 515,000 people sustained 

injuries in motor vehicle accidents in which 

at least one form of driver distraction was 

noted on the crash report. NHTSA Traffic 

Safety Facts Research Note (September 

2009). An Examination of Driver Distraction 

as Recorded in NHTSA Databases, at 1, 

3. Thus, crashes involving distraction accounted 

for 16 percent of the overall motor 

vehicle fatalities in 2008 and 22 percent of 

those injured. Research has suggested that 

when looking at all vehicle crashes, driver 

inattention or distraction has been identified 

as playing a causal role in 25–30 percent 

of crashes. Wang, J.S., et al., The Role 

of Driver Inattention in Crashes: New Statistics 

from the 1995 Crashworthiness Data 

System, 40th Annual Proceedings of the 

Association for the Advancement of Automotive 

Medicine, Vancouver, British Columbia 

(1996). As discussed below, recent 

studies suggest the percentage of distraction 

crashes may be higher. 

The driver distraction issue is of course 

a subpart of the larger driver error/accident 

causation issue. It has long been 

established that driver error is responsible 

for the vast majority of motor vehicle 

accidents, and that vehicle conditions/ 

defects and/or environmental conditions 

rarely play any causative role. The seminal 

study on this issue determined that 93 

percent of all motor vehicle accidents are 

caused by driver error. Treat, J.R., et al., 

Tri-Level Study of the Causes of Traffic Accidents 

(document No. DOT HS-805 085), 

Washington D.C., National Highway Traffic 

Safety Administration USDOT (1979) 

(Treat Tri Level Study). This study found 

that human error was the sole cause in 57 

percent of all accidents and was a contributing 

factor in over 90 percent. By contrast, 

only 2.4 percent of accidents were due solely 

to mechanical fault and only 4.7 percent 

were caused only by environmental factors. 

Other studies have generally confirmed 

these findings. See, e.g., Wierville, W.W., et 

al., Identification and Evaluation of Driver 

Errors: Overview and Recommendations, 

(Report No. FHWA-RD-02-003). Washington 

D.C., Federal Highway Administration, 

USDOT (2002). While such studies provide 

a helpful starting point to a lawyer defending 

a commercial vehicle manufacturer or 

a road construction company, they are at 

best a mixed blessing for the lawyer defending 

the actions of a commercial truck driver 

and/or trucking company in a case arising 

from a commercial truck crash. That is, in 

a two- vehicle accident, the “driver error” 

claim can be used by either side defensively 

(“My driver did nothing wrong.”) 

or offensively (“Your driver did something 

wrong.”). When determining whether and 

how to use the driver distraction data as a 

sword or a shield, it behooves the defense 

attorney to have a basic understanding of 

the data and of the case law relating to the 

driver distraction issue. In particular, in 

today’s environment, the defense attorney 

needs a working knowledge of the data 

and case law regarding the safety implications 

of the use of cell phones and other 

electronic devices that can direct the driver’s 

attention to secondary tasks and away 

from the road. 

In discussing driver distraction- related 

issues, this article has three goals: 1) highlight 

key findings from recent driver distraction 

studies; 2) address case law relating 

to driver distraction generally, and in particular 

the relatively recent phenomenon 

of cell phone and other handheld device 

usage by vehicle operators; and 3) provide 

some practical considerations as to implications 

that the driver distraction data has 

to risk managers and attorneys who might 

use the driver distraction data as either a 

The general consensus 

among researchers… is 

that crash studies tend 

to underestimate the role 

driver distraction plays 

in vehicle crashes. 

“sword or shield” in defending commercial 

trucking cases. 

Overview of “Driver 

Distraction” Studies 

While it has long been known that driver 

error was the primary cause of motor vehicle 

accidents, only in recent years have researchers 

more narrowly focused on driver 

distraction. As distraction- related vehicle 

crashes have increased, technological advances 

have allowed the “on-board” installation 

of multiple cameras and computers to 

more closely monitor driver activity in “real 

world” driving situations. This allowed researchers 

to examine driver distraction and 

the role that the driver’s performance of secondary 

tasks plays in causing or contributing 

to vehicle crashes. 

A review of driver distraction studies 

suggests they can be placed into three 

broad categories, with each category having 

recognized strengths and weaknesses. Historically, 

the most common type of driver 

distraction study has been based on crash 

data gathered by law enforcement personnel 

and collected in various databases. 

Examples include the following studies: 

Stutts, J.C., et al., The Role of Driver Distraction 

in Traffic Crashes, Washington, 

D.C., AAA Foundation for Traffic Safety 


Trucking Law 

(2001); Wang, J.S., et al., The Role of Driver 

Inattention in Crashes: New Statistics from 

the 1995 Crashworthiness Data System, 40th 

Annual Proceedings of the Association for 

the Advancement of Automotive Medicine, 

Vancouver, British Columbia (1996). 

Relying on such data, research groups conclude 

that driver inattention in some form 

played a role in approximately one quarter 

While the sample size 

is small… all of the 21 

crashes in the CMV study 

occurred within six seconds 

of a driver distraction. 


of all police- reported motor vehicle crashes. 

Stutts, et al., at 3, 6. A review of studies from 

1995 through 2003 suggests that driver distraction 

played a role in approximately 10 

percent of all “tow away” crashes—those in 

which at least one vehicle was towed from 

the scene. Ranney, at 2, 10. Other crash 

data studies consistently reach conclusions 

within these general ranges. For a citation 

to and a general review of such studies, see 

Ranney, at 2; Reinfurt, D.W., et al., The 

Role of Driver Distraction in Traffic Crashes, 

Washington, D.C., AAA Foundation for 

Traffic Safety (2001). See also NHTSA Traffic 

Safety Facts Research Note, An Examination 

of Driver Distraction as Recorded 

in NHTSA Data Bases (September 2009). 

That said, the general consensus among 

researchers (supported by the results of the 

naturalistic studies discussed below) is that 

crash studies tend to underestimate the role 

driver distraction plays in vehicle crashes. 

Stutts, et al., at 35. While crash studies provide 

direct information about the relationship 

between driver distraction and vehicle 

crashes, self reporting from the driver can 

be unreliable and it is often difficult (and 

virtually impossible in a one- vehicle crash 

with serious injury or fatality) to determine 

after the fact whether driver distraction 

played any role in a crash. 

Other studies on the driver distraction 

issue may be characterized as experimental 

studies of driving performance. These 

studies are generally based on the review 

and analysis of data collected in controlled 

settings such as driving simulators and test 

tracks. See, e.g., Drews, F.A., et al., Passenger 

and Cell Phone Conversations in Simulated 

Driving, Journal of Experimental 

Psychology Vol. 14, No. 4 (2008). Participants 

are asked to intermittently conduct 

secondary tasks while “driving” a vehicle 

simulator or driving on a test track. The 

“driver’s” ability to respond to various 

emergency situations is assessed both in the 

presence and the absence of the performance 

of secondary tasks of varying levels of 

complexity. Beyond the argument that the 

simulator “driver” is not operating in “real 

world” driving situations, the criticism of 

such studies is that they neither measure 

the propensity of a driver to participate in 

the secondary task, nor measure the intensity 

with which a driver might become engaged 

in the secondary task. Simply put, the 

“driver” is distracted because he or she is 

told to be distracted and not because he or 

she wants to be. Ranney at 2; Stutts, et al., at 

5. It is perhaps for these and other reasons 

that the findings in experimental studies 

relating to distracted driving have at times 

varied significantly from the conclusions 

reached in other types of studies. 

Another type of study on distracted driving 

can be characterized as observational 

studies. In the simplest form of this type of 

study, the fixed-site observation study, a researcher 

stands at an intersection to make 

observations and record what was observed. 

For instance, the total number of vehicles 

passing a given point may be noted, and researchers 

may record observed distractions 

such as cell phone usage, grooming, eating, 

etc. While fixed-site studies provide some 

insight as to driver action in real-world 

driving situations, they are limited by the 

“fixed-site” aspect of the study. That is, the 

observer with practical limitations of observation 

takes a mere “snapshot” of the driver 

at a specific location and in limited circumstances. 

More recently, due in large part to 

technology that allows installation of multiple 

on-board cameras and computers to 

collect data, we have seen the emergence of 

naturalistic observational studies. See Sayer, 

J.R., et al., The Effects of Secondary Tasks on 

Naturalistic Driving Performance, Rep. No. 

UMTRI-2005-29. Ann Arbor, Michigan, 

University of Michigan Transportation Research 

Institute (2005) (study of 36 drivers 

to determine the frequency and conditions 

under which drivers participate in secondary 

behavior). In such studies, the vehicle 

is instrumented with sensors to collect data 

(e.g., acceleration and deceleration, lateral 

forces) and multiple cameras to record not 

only driver and passenger activity but also 

360 degrees of surrounding traffic. Thus, a 

researcher is able to observe driver behavior 

in the vehicle and correlate that with events 

unfolding in the vicinity of the driver. The 

obvious benefit of such studies is that they 

provide researchers with massive amounts 

of data generated in normal driving situations. 

The primary detriments relate to cost 

and sufficient sample size. Further complicating 

these studies is the fact that a large 

amount of data is collected, most of which 

is uneventful, and the incidences of crashes 

on equipped vehicles is extremely low. (By 

way of example in the “100 Car Study” discussed 

below, with 2,000,000 miles driven 

there were only 69 instances of unintended 

contact between the vehicle and any vehicle 

or object.) As a result, researchers who 

review data derived from the naturalistic 

studies have few actual accidents to review 

and thus must focus on “near misses” and 

“crash associated events” that ultimately 

did not result in a crash. 

The seminal “naturalistic study,” 

released in 2006, is generally known as the 

“100 Car Study.” Dingus, T.A., et al., The 

100-Car Naturalistic Driving Study: Phase 

II—Results of the 100 Car Field Experiment, 

National Highway Traffic Safety Administration 

(April 2006). For roughly one year, 

using seven “on-board” cameras to monitor 

activity in and around the vehicle, and onboard 

computers and sensors to measure/ 

record driver input and various forces acting 

on the vehicle, the 100 Car Study monitored 

241 primary and secondary drivers 

for over 2,000,000 miles of driving, collecting 

43,000 hours of data. An event database 

of more than 9,000 “critical events” 

was constructed consisting of 69 crashes 

(any vehicle to vehicle/person/object contact), 

751 “near crashes” (circumstances 

requiring a rapid, severe evasive maneuver) 

and 8,295 “incidents” (circumstances that 

required a crash avoidance response). The 

six seconds leading up to each critical event 

were compared to thousands of randomly

selected “baseline events” of uneventful 

driving. The study concluded that in almost 

80 percent of all recorded crashes and 65 

percent of all recorded near crashes, in the 

six seconds prior to the event, the driver’s 

attention had been directed to something 

other than the forward roadway. 

Id. at xxiii. While the study was undertaken 

when cell phone usage was at only 

half its current level, and text messaging 

was in its infancy in the United States, the 

researchers reported that use of various 

handheld electronic devices “was associated 

with the highest frequency of secondary 

task distraction- related events” and 

that “wireless devices were also among the 

categories associated with the highest frequencies 

of crash and minor collisions….” 

Id. at xxiv. The study concluded that drivers 

were three times more likely to be involved 

in a crash or near crash while engaging in 

a highly complex secondary task and two 

times more likely to be involved in a crash 

or near crash while engaging in a moderate 

secondary task. Id. at 29. 

While the results from the 100 Car Study 

can be applied at least generally to all driving 

situations, the study only evaluated 

drivers of five models of cars and one model 

of SUV. The vehicles involved were the Toyota 

Camry (17 percent), the Toyota Corrola 

(18 percent), the Chevy Cavalier (17 

percent), the Chevy Malibu (21 percent), 

the Ford Taurus (12 percent) and the Ford 

Explorer (15 percent). 100 Car Study at 

xxxv. The issues of the role that driver error, 

generally, and driver distraction in particular, 

play in crashes involving large commercial 

trucks has not been studied to the same 

degree as it has in crashes involving passenger 

cars and light trucks. The need for 

such information, however, is no less pressing. 

In 2007, large trucks were involved in 

413,000 crashes. Of those crashes, 4,584 

were fatal crashes. National Highway Traffic 

Safety Administration. Traffic Safety 

Facts—2007 Data: Large Trucks, (Document 

No. DOT-HS-810-989). Washington, 

D.C. (2008). The 2009 naturalistic 

study, Driver Distraction in Commercial 

Vehicle Operations, Olson, R.L., et al., Federal 

Motor Carrier Safety Administration, 

USDOT, Report No. FMCSA-RRR-09-042 

(the CMV Study), is clearly the most thorough 

analysis of the driver error and driver 

distraction issue to date as it relates to the 

operation of commercial vehicles. At more 

than 300 pages, the CMV Study is quite 

detailed, but those regularly involved in 

the defense of crash- involved commercial 

truck cases are well served to at least study 

the executive summary and conclusions. A 

thorough, annotated bibliography, beginning 

at page 239, lists and provides a brief 

synopsis of more than 60 studies relevant 

to the driver distraction issue. 

The CMV Study was conducted to 

address this gap in the literature by investigating 

driver distraction in commercial 

vehicle operations. While not detailed here, 

the authors summarize the distinctions 

between the 100 Car Study and the CMV 

Study, and explain the difficulties in comparing 

the two as well as some limitations 

of the CMV Study at pp. xvii–xix. The CMV 

Study took data from two previous research 

efforts utilizing a naturalistic approach 

similar to that of the 100 Car Study. CMV 

Study at ix; 17, 18 and 21. Relying on information 

generated by approximately 200 

drivers who operated their trucks nearly 

3,000,000 miles, the CMV Study collected 

and analyzed roughly 60,000 hours of data 

to create a database that yielded a set of 

4,452 “safety critical events”: 21 crashes; 

197 near crashes; 3,019 crash relevant conflicts; 

and 1,215 unintentional lane deviations. 

Id. at xvii, 38–40. These events 

were compared to 19,888 randomly selected 

baseline events of routine driving. Generally 

consistent with the findings from the 

100 Car Study, researchers in the CMV 

Study determined that in 81.5 percent of 

the 4,452 safety critical events, driver distraction 

was a potential contributing factor 

because the distraction occurred within 

the six seconds leading up to the safety 

critical event. Notably, while the sample 

size is small and thus perhaps not statistically 

significant, all of the 21 crashes in the 

CMV study occurred within six seconds of 

a driver distraction. Id. at xvii, 38–40. 

In the CMV Study, the researchers analyzed 

many tasks/acts that create the potential 

for driver distraction and evaluated the 

frequency with which a safety critical event 

was associated with performance of such 

a task. In doing so, they ultimately identified 

the increased chance that participation 

in such a task/act would result in a safety 

critical event. Noted below are some of 

the tasks/acts most likely to be associated 

with a safety critical event, and the increment 

by which participation in the task 

increases the likelihood of the occurrence 

of a safety critical event within six seconds 

of the act: text messaging on a cell phone— 

23:1; interacting with or looking at a dispatching 

device—10:1; writing on a pad or 

notebook—9:1; using a calculator—8:1; 

looking at a map—7:1; using or reaching 

The data confirms the 

supposition that certain 

tasks that are now routinely 

undertaken by drivers 

may distract the driver 

from the safe operation 

of a motor vehicle. 

for an electronic device (camera, two-way 

radio, etc)—7:1; dialing a cell phone—6:1; 

reading a book or newspaper—4:1. Id. at 

xxi, 149. Notably, while reaching for, texting 

with, or dialing a phone was a high 

risk task, talking or listening on a handheld 

phone had a low “odds ratio” (1.04:1) which 

is roughly comparable to eating (1.01:1) 

and using chewing tobacco (1.02:1). This 

suggests that talking or listening on a cell 

phone does not appreciatively elevate the 

likelihood of being involved in a safety 

related event. Moreover, talking/listening 

to a CB radio (0.55:1) or a hands free phone 

(0.44:1) seemingly provided a reduction 

of the likelihood of a safety critical event. 

These latter results are consistent with 

other studies involving passenger cars and 

light trucks that have analyzed the impact 

that talking or listening on a phone has on 

driver attention. Id. at xxii. 

To understand why certain tasks increase 

the chance of being involved in a safetyrelated 

event, the CMV Study analyzed 

the focal attention of the driver’s attention 

during various tasks. As one might expect, 

“tasks that draw drivers’ eyes away from 

the forward roadway were those with high 

odds ratio. For example, texting… had the 


Trucking Law 

A jury may properly 

consider evidence of cell 

phone use when deciding 

whether a plaintiff driver… 

has some responsibility 

for an accident. 

longest duration of eyes off forward roadway 

(4.6 seconds over a six- second interval). 

This equates with a driver traveling 

the length of a football field, at 55 mi/h, 

without looking at the roadway. Id. at xxii. 

Researchers noted other highly distracting 

tasks and their “eyes off the forward roadway” 

time: reading a book or newspaper 

(4.4 seconds); driver interacting with technology: 

calculator (4.4 seconds); writing 

(4.2 seconds); dispatching device (4.1 seconds); 

looking at a map (3.9 seconds); cell 

phone dialing (3 seconds); and reaching for 

an object (2.9 seconds). Id. at xxiv. 

Collectively, the data confirms the supposition 

that certain tasks that are now 

routinely undertaken by drivers may distract 

the driver from the safe operation of 

a motor vehicle. However, not all distractions 

are equal in effect. That is, distractions 

differ significantly in their impact on 

safety. These distinctions among the tasks 

has potential significance to the risk manager 

crafting a policy on the use of electronic 

devices and to the lawyer presented 

with a case in which there is evidence that 

one of the drivers was distracted. 

Overview of Case Law Related to 

Cell Phones and Handheld Devices 

As research and public awareness of the 

risks of driver distraction has increased, 

there has been an increase in claims and 

lawsuits with allegations that driver distraction 

caused or contributed to cause 

a vehicular crash. This increase will certainly 

impact litigation in which a commercial 

truck is involved. With advances 

in technology, on-board communications 

between the truck driver and others have 


increased dramatically. Communications 

with a dispatcher or personnel at a load 

destination that previously originated from 

a pay phone at a truck stop now routinely 

occur in the truck as the driver is traveling 

down the highway at 70 miles per hour. 

Various courts have already addressed 

issues arising from claims that use of a cell 

phone or other electronic device diverted 

the driver’s attention from the driving task 

and resulted in an accident. It is beyond 

the scope of this article to address the full 

range of cases and detail the various legal 

theories and factual scenarios that have 

been presented. The following, however, is 

a general overview of the some of the legal 

theories presented as they relate to the issue 

of driver distraction due to the use of cell 

phones and other handheld devices. 

As expected, the allegation of simple negligence—that 

cell phone use distracted the 

driver—was a common claim. While some 

courts and juries have found that the evidence 

presented on cell phone use did support 

a finding of negligence, others have 

concluded that evidence of cell phone use did 

not establish negligence on the part of the vehicle 

operator. The determination is clearly 

one that turns on the facts of the case. 

In one case, McCormick v. Allstate Insurance 

Co., 870 So. 2d 547 (La. Ct. App. 3d 

Cir. 2004), plaintiffs alleged the driver of a 

motor vehicle was talking on a cell phone 

when driving in a parking lot just before 

the crash, and was not looking at the travel 

lane. The defendant’s use of the cell phone 

was apparently undisputed, and the primary 

argument urged by plaintiff was that the defendant 

driver was distracted by a call that 

was ongoing when the crash occurred. The 

court affirmed a judgment that found the 

defendant solely responsible for the accident 

and stated that the record supported the trial 

judge’s conclusion that the defendant was 

distracted by use of a cell phone. 

In another case, Quinones ex rel. Hall v. 

Community Action Com’n to Help the Economy, 

Inc., 46 A.D.3d 1326, 849 N.Y.S.2d 320 

(3d Dep’t 2007), a court held that testimony 

by a passenger in a van that the driver of that 

van was, among other things, talking on a 

cell phone at the time of the crash, created 

an issue of fact on whether the actions of 

the driver contributed to the accident, thus 

precluding summary judgment in favor of 

the driver. While the court noted that the 

driver of the van claimed that she did not 

even have a cell phone with her at the time 

of the accident, a passenger in the van did 

offer testimony that the driver was talking 

on a cell phone, driving in excess of the 

speed limit, and did not apply the brakes. 

This testimony was found to have created 

a fact issue as to whether the driver of the 

van was talking on a cell phone at the time, 

and whether such action created a distraction 

that was a cause of the crash. Cases like 

this suggest that any direct evidence of cell 

phone use would be sufficient to support a 

jury submission of negligence. 

There is also case law to support the argument 

that, in the absence of direct evidence, 

circumstantial evidence may be used 

to support a submission of negligence related 

to cell phone use distraction. An Illinois 

appellate court recently found that a 

trial court erred by excluding circumstantial 

evidence that a driver had been using 

a cell phone immediately before a crash as 

such is relevant to the issue of causation. 

In that case, Hiscott v. Peters, 324 Ill. App. 

3d 114, 257 Ill. Dec. 847, 754 N.E.2d 839 (2d 

Dist. 2001), the trial court excluded billing 

records for the defendant driver’s cell phone 

account that revealed he used his cell phone 

for one minute at a point in time close to the 

time of the accident. Although there was no 

direct evidence that the defendant driver 

was using his cell phone at the time of the 

crash, there was testimony that he only had 

one hand on the steering wheel at the time. 

The court reasoned that use of a cell phone 

by the driver was not so remote as to require 

exclusion and that such evidence may 

affect the jury’s allocation of fault between 

the two drivers. Although it does not appear 

in this particular case that either party introduced 

evidence of any studies relating 

to distracted drivers and use of cell phones, 

this is exactly the type of case where such 

studies may be of use. 

While some courts have found evidence 

of cell phone use sufficient to support a 

finding of negligence against a motor vehicle 

operator, use of such devices does not 

necessarily establish liability on the part 

of the driver. In one case, although the 

jury concluded the defendant driver of a 

vehicle was negligent when using his cell 

phone while driving in heavy traffic, they 

found that such use did not cause the accident. 

Finn v. Kemper Insurance Co., 2006-

CA-0253, 2007 WL 861099 (La. Ct. App. 1 

Cir. 2007). The defendant driver disputed 

that he was talking on a cell phone at the 

time of the crash. The court noted that the 

jury, even though finding the defendant 

driver negligent, may have concluded that 

the actions of the other driver involved in 

the incident was the sole cause of the crash 

for failing to drive more prudently once 

another vehicle entered his lane of travel. 

The court further noted there was no evidence 

that overwhelmingly demonstrated 

the defendant driver was inattentive to the 

surroundings, even though he may have 

been using his cell phone at the time. 

Several courts have considered and affirmed 

judgments in cases where the defendant 

successfully argued the plaintiff 

driver was the one actually at fault and 

found contributorily negligent for, among 

other things, using a cell phone while driving. 

In a Louisiana case, Hebert v. Old Republic 

Insurance Co., 807 So. 2d 1114 (La. 

Ct. App. 5th Cir. 2002), the court considered 

whether evidence of cell phone use and 

other actions by the plaintiff driver was sufficient 

to allow the jury to apportion a certain 

percentage of fault for the accident to 

the plaintiff. This case involved a crash between 

a tractor- trailer rig that was backing 

out of a lot and an oncoming vehicle. The defendant 

presented evidence that the plaintiff 

was talking on a cell phone at the time 

of the incident. The plaintiff denied she was 

using her cell phone. The jury allocated a 

percentage of responsibility to the plaintiff 

driver. On appeal the plaintiff driver complained 

that the jury erred in attributing 

any fault based on an inference that she was 

using her cell phone at the time. Although 

the court did not specifically address any 

claimed error for allowing evidence of cell 

phone use, it noted in affirming the judgment 

that the jury charge did not include 

any reference to cell phones or the possibility 

of liability due to a driver’s use of a cell 

phone while driving. There was no basis to 

say the jury made a finding against plaintiff 

on the cell phone issue and there was other 

evidence that would support a finding of liability 

against plaintiff. This case suggests 

that a jury may properly consider evidence 

of cell phone use when deciding whether a 

plaintiff driver was distracted due to use of 

a cellular device and thus has some responsibility 

for an accident. 

In another case arising from an intersection 

collision, Scianni v. Suriano, 2007 WL 

506206 (N.J. Super. Ct. App. Div. 2007), the 

defendant introduced the plaintiff’s cell 

phone records to establish that plaintiff may 

have been using the cell phone at the time 

of the crash. Those records revealed that a 

cell call took place shortly before the time 

when the accident occurred. However, there 

was no evidence that the defendant or any 

other witness actually observed the plaintiff 

using her cell phone at the time. One 

key point on appeal was whether it was error 

for the trial court to admit into evidence 

the cell phone records for consideration on 

the issue of contributory negligence on the 

part of plaintiff when there was no direct 

evidence of cell phone use at the time of the 

crash. The court concluded that a driver’s 

use of a handheld cell phone while driving 

is relevant to the issue of negligence, and in 

this case such conduct may have distracted 

plaintiff in the operation of her vehicle. The 

court further noted that cell phone use may 

have affected her observations of the traffic 

signal and the intersection. 

There are also cases where courts have 

concluded the defense of contributory negligence 

was not supported by evidence of 

cell phone use by the plaintiff driver. In one 

Texas wrongful death case, TXI Transp.Co. 

v. Hughes, 224 S.W. 3d 870 (Tex. App—Fort 

Worth 2007, no writ), the court considered 

the issue of whether it was proper for the 

trial court to exclude evidence that the plaintiff’s 

driver may have received a call on her 

cell phone around the time of the crash. The 

defendant truck driver claimed that plaintiff’s 

driver was distracted by a call from 

her spouse, or the ringing of her cell phone 

while driving, and that she drifted over the 

centerline of the roadway. The defendant 

driver attempted to introduce evidence that 

cell phone records revealed a call lasting 

two minutes from the spouse’s phone to the 

plaintiff’s driver’s phone, and two additional 

calls lasting approximately one minute each 

from the same phone to the plaintiff’s driver’s 

phone. The spouse offered testimony 

that no one answered his calls to the driver’s 

cell phone. In affirming the trial court’s 

decision to exclude the cell phone records, 

the court reasoned that there was no evidence 

that the driver’s cell phone ever rang, 

that it was on vibrate, or that the phone was 

even in the front seating area of the driver’s 

vehicle. Thus, there was no evidence connecting 

the spouse’s call to the driver’s cell 

phone at the time of the accident. While the 

court did not rule out the idea that evidence 

such as cell phone records may be relevant 

to the conduct of a driver on a claim of negligence 

or contributory negligence, it seems 

to imply that the party attempting to show 

that a driver was distracted by a cell phone 

Courts are receptive 

to the concept that cell 

phone use may result in a 

distraction to the driver. 

must present further evidence of the use 

of or ringing of the phone to establish that 

such caused a distraction to the driver. Several 

studies cited in this article present data 

and conclusions that may support or rebut 

an argument that a driver was distracted by 

a cell phone and may be helpful to the litigator 

in establishing such. 

In a case that might be a harbinger of 

claims to come in the fleet safety area, at 

least one court has considered the issue of 

whether the parents of a minor driver may 

be held liable for injuries sustained in an 

accident that was allegedly caused by the 

minor driver’s use of a cell phone. In Pertinen 

v. Swick, 2002 WL 1008462 (N.D. 

Ill. 2002), the plaintiffs sought to hold the 

parents of a minor driver liable under a 

theory of negligent entrustment. In that 

case plaintiffs alleged the minor driver 

(the defendant’s daughter) was using a cell 

phone while operating a motor vehicle that 

was entrusted to her by the parents and further 

that the parents implicitly authorized 

their daughter to use the cell phone while 

driving. They also alleged the parents knew 

from one previous incident that the minor 

was an inexperienced and reckless driver. 

The parents denied their daughter was a 

reckless driver and introduced evidence 

that they had instructed her that the cell 

phone was only to be used in an emergency 

and never while operating the vehicle. The 

plaintiff introduced evidence to establish 

that in fact the parents were aware that 


Trucking Law 

their child used her cell phone while driving, 

and cell phone records indicated that 

the mother had called the child only minutes 

before the accident. The court affirmed 

a summary judgment granted in favor of 

the parents on the negligent entrustment 

claim and noted that evidence indicating 

a call from the mother to the daughter’s 

cell phone minutes before the crash 

Fleet Safety Managers 

should develop policies 

to eliminate or minimize 

the use of in- vehicle 

devices while driving. 

did not, absent other evidence suggesting 

incompetence or recklessness, provide a 

basis to conclude the parents knowingly 

entrusted the vehicle to an incompetent 

or unfit driver. Despite this result, it is not 

difficult to envision an argument by claimant’s 

or plaintiff’s counsel that a trucking 

company was negligent in providing or 

allowing/promoting the use of “distracting 

devices” in the truck cab. 

From a review of various cases that have 

addressed allegations of negligence based 

on cell phone use by drivers, it is apparent 

that given the proper evidence, courts are 

receptive to the concept that cell phone use 

may result in a distraction to the driver, 

leading to an accident. 


Practical Considerations in the Use 

of the “Driver Distraction” Data 

The practical reality is that the cell phones, 

navigation devices and electronic devices 

that connect the commercial driver to others 

are critical pieces of equipment for 

the commercial truck driver who seeks to 

remain content, productive and competitive 

while on the road. However, the studies 

discussed above clearly reveal that driver 

distraction is a safety issue, and one to be 

considered and addressed not only by litigation 

counsel, but also by risk managers 

seeking to reduce vehicle crashes and 

crash- related deaths and injuries. Legislation 

at the federal, state and local level (and 

case law, to a lesser extent) provide some 

guidelines for implementation of policies 

restricting the use of cell phones and other 

electronic devices that can draw a driver’s 

attention from the forward roadway. 

Indeed there is already an ongoing discussion 

within the federal government as 

to possible federal regulation of cell phone 

use by the operators of commercial vehicles. 

See USA Today, September 24, 2009: 

Feds Weigh Cell Phone Ban for Bus, Truck 

Drivers. However, the safety and liability 

issues set forth above suggest further consideration 

of action at the company level. 

This further action may include the implementation 

of and monitored adherence to 

an organizational policy which addresses 

the use of cell phones and other electronic 

devices while driving. The need for the 

implementation and adherence to an organizational 

policy is particularly high where 

there is a statistically significant correlation 

between a given practice and the potential 

for a crash. By way of example, in October 

of 2009, President Obama issued Executive 

Order No.13513 in which he implemented a 

ban on text messaging by federal employees 

while operating federal vehicles. Executive 

Order No. 13513 issued October 1, 

2009; Federal Register Vol. 74, No. 192 

(October, 2009) at 51225. That Order states: 

“Text messaging causes drivers to take 

their eyes off the road and at least one hand 

off the steering wheel, endangering both 

[the driver of the government vehicle] and 

others.” Id. at 51225. In the wake of such 

action, and in light of the research and 

media stories that connect text messaging 

to crashes, a risk manager should consider 

what policies and procedures might 

be implemented to address the safety risks 

associated with not only text messaging, 

but also with the use of cell phones and 

other electronic devices that distract the 

driver from the driving task. 

The recommendations from the CMV 

Study discussed above provide a framework 

from which an organizational policy 

might be crafted. In the CMV Study, the 

researchers included the following among 

their recommendations: 

• Fleet Safety Managers should educate 

their drivers on the importance of being 

attentive and not engaging in distracting 

tasks or behaviors. 

• Fleet Safety Managers should develop 

policies to eliminate or minimize the use 

of in- vehicle devices while driving and 

educate drivers on the dangers of these 

devices. 

• Drivers should not be allowed to text, 

manually dial cell phones, or read, write, 

look at maps or use dispatching devices 

while driving. 

• Drivers should NOT be prohibited from 

talking on a cell phones or CB radios. 

CMV Study at xxvi–xxvii, 154–55. 

The specific policy implemented will, of 

course, vary from one company to another 

as the effort is made to balance the practical 

need for the driver to utilize potentially 

distracting equipment with the risks 

associated with the use of the equipment in 

different settings. As with any policy, effectively 

conveying the policy and the risks 

associated with noncompliance (education) 

is critical, as is the need to monitor 

compliance. Through these steps the risk 

manager can address the “epidemic” of distracted 

driving and reduce property damage 

and personal injury in the operation of 

the fleet. 

Conclusion 

The lawyer defending the commercial 

driver or trucking company in a commercial 

vehicle crash case will need to gather 

the facts of the case and consider them in 

light of the data highlighted above. This 

will allow the lawyer to determine whether 

the facts of a given case are conducive to 

using the distracted driving data as a sword 

and/or a shield. Consideration should be 

given to whether there is at least some evidence 

to support an allegation that any 

involved driver was engaged in any secondary 

activity that redirected attention 

from the driving task at hand, and particularly 

whether any driver was engaged in 

one of the tasks that significantly increases 

the risk of a crash event. Using the data as a 

shield, the defense lawyer should be mindful 

that among the secondary tasks a driver 

may be engaged in, some do not appreciably 

increase the risk of a crash related event, 

and in fact some arguably lower the risk. 

The risk manager should educate employees 

as to the dangers of distracted driving 

and craft, implement and monitor compliance 

with a policy designed to minimize 

the distracted driving.

Trucking Law 

E-Trucking 

By M. Garner Berry 

Industry Can’t 

Hide from 

E-Discovery 

It is important for 

both lawyers and 

trucking companies 

to proactively 

identify and preserve 

potentially relevant 

electronic information 

as early on as possible 

in litigation. 

E-discovery is invading almost every aspect of litigation 

these days, particularly in the trucking industry. 

Advances in technology and in the equipment found in 

trucks over the past 10 years have allowed large com- 

mercial carriers to more safely, efficiently 

and innovatively transport goods across 

the country. Additionally, the emergence of 

electronic control modules, satellite tracking 

equipment, messaging systems and trip 

recorders have created a new dimension of 

discovery and document production once 

litigation against a trucking company or its 

employees arise. The vast amount of electronic 

information that now exists, along 

with the Federal Rules of Civil Procedure 

amendments related to e- discovery, has 

brought new obligations, and every trucking 

company and trucking lawyer should 

be aware of them. The days of gathering 

and producing boxes of paper logs, trip 

inspections, maintenance documents and 

the like, are slowly dwindling to an end. 

Further, large, national carriers are not 

the only carriers affected by new e- discovery 

obligations. Regional carriers, and even the 

smallest “mom and pop shops” in rural 

Mississippi can be affected by electronic 

discovery obligations. While small trucking 

companies may not have high-tech satellite 

equipment, many of even the smallest 

companies still have cell phones or personal 

GPS tracking systems, such as Tom-Tom or 

Garmin, which have become commonplace 

and may contain mounds of electronic 

information that could be relevant, discoverable 

and require preserving. 

Under the newest e- discovery- related 

rules and case law interpreting them, it is 

not enough for a lawyer to simply rely on 

a company to preserve relevant information 

or documents. It is now incumbent 

on a company and the lawyers working for 

that company to see that all relevant electronic 

information that another party might 

seek as discoverable is preserved very early. 

Communication between a carrier and its 

attorney and determining where this electronic 

information resides and is stored are 

key obligations for a trucking carrier lawyer 

before, during and after litigation. Given 

that the field of electronic discovery in general 

is growing at a rapid pace and its extensive 

size and complexity should not be 

dismissed or trivialized, having some nec- 

n M. Garner Berry is a partner in the Jackson, Mississippi, office of Daniel, Coker, Horton, and Bell, P.A., focusing on trucking 

litigation, product liability, premises liability and general litigation. Mr. Berry sits on the firm’s E-discovery committee, and he is a 

member of DRI’s Trucking Law, Young Lawyers, Product Liability and E-Discovery Committees. Mr. Berry is currently serving as 

the Substantive Liaison between the DRI Trucking Law and Young Lawyers Committees. 


Trucking Law 

essary building blocks and positive open 

communication with a trucking company 

can well get you on your way to effectively 

defending a company and addressing many 

of the e- discovery issues that may arise during 

litigation. What follows is a basic, electronic 

discovery “primer” and brief best 

practices guide to assist a trucking lawyer in 

planning and litigating trucking cases. 

First, become familiar 

with a trucking company’s 

overall business structure 

and organization. 

Electronic Discovery Primer 

The discovery of electronically stored 

information (ESI) has been covered for 

quite some time by the Federal Rules of 

Civil Procedure, as well as by state court 

rules, such as the Mississippi Rules of Civil 

Procedure. Mississippi Rule of Civil Procedure 

34, along with many other states, 

and Federal Rule of Civil Procedure 34, 

prior to its amendment, have long stated 

that requests for production of documents 

from a party include “other data compilations.” 

The recognition that advances in 

technology had opened a new frontier in 

discovery led to the amendments to the 

Federal Rules of Civil Procedure. In 1999, 

the Civil Rules Advisory Committee began 

to meet and propose amendments to the 

Federal Rules of Civil Procedure to accommodate 

the technological advancements, 

ESI and electronic production. After public 

consideration and comment on a proposed 

set of rules, the proposed rules were 

revised and submitted to the United States 

Supreme Court, which approved them in 

April 2006. These new rules went into effect 

on December 1, 2006. Most significant are 

the e- discovery amendments that affected 

rules 16, 26, 33, 34, 37 and 45 and Form 35. 

The Committee Notes to each amended 

rule offer examples of ESI discovery that 

may be encountered, as well as explain the 

rationale of each amendment. 

While the explosion of electronic discovery, 

governing rules and precedent 


has developed primarily in federal courts, 

which have taken the lead in interpreting 

the new landscape, state courts have also 

recognized emerging electronic discovery 

issues and reacted accordingly. This 

expansion of e- discovery issues in state 

courts has vastly increased the prevalence 

of electronic discovery in trucking litigation 

against national, regional and local 

carriers, and hence created a necessity for 

all trucking lawyers to become familiar 

with the landscape and gain some understanding 

of electronic discovery to effectively 

represent a client. For instance, on 

May 29, 2003, the Mississippi Supreme 

Court amended Mississippi Rule of Civil 

Procedure 26(b) to include discovery of 

“electronic or magnetic data,” which is 

clarified in Rule 26(b)(5). While Mississippi 

case law interpreting the amendment 

is sparse, the amendment process in and of 

itself represents recognition of technological 

advancements and their effects on discovery 

in litigation. 

Because of the breadth of the changes, 

an attorney should read and become familiar 

with the amended rules, as well as 

the Committee Notes and Comments, to 

the extent possible. Under the e- discovery 

amendments, an attorney might need to take 

immediate action on receiving notice of a 

complaint, so the time to familiarize yourself 

with the applicable concepts is now. An attorney 

who waits to read the rules and notes until 

after litigation has commenced will be at 

a distinct disadvantage. Furthermore, many 

tasks related to electronically stored information 

may be required well before a suit is filed, 

such as preservation obligations and “litigation 

hold” directives, which are of particular 

interest to corporate counsel. 

Pre-Litigation Client 

Relationship Best Practices 

The author recognizes that due to spontaneously 

created relationships between 

many trucking companies and their attorneys, 

which frequently first occur when 

a lawsuit is anticipated or when a complaint 

is first served, an attorney may not 

have the ability to complete many of the 

tasks described below as early as would 

be ideal. However, each task is still vital 

and you should complete them as soon as 

your involvement begins and continually 

monitor task completion. In the world of 

e- discovery, knowledge, continual monitoring 

and compliance are key. 

First, become familiar with a trucking 

company’s overall business structure and 

organization. Zubulake v. UBS Warburg 

LLC, illustrates the importance of this task. 

217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake 

I). In this case, the court held that deciding 

the scope and cost of electronic discovery 

requires a three-step analysis: (1) A 

thorough understanding of the responding 

party’s computer system, with respect to 

active data and stored inaccessible data; (2) 

Because a cost- shifting analysis is so factintensive, 

it’s necessary to determine what 

information the inaccessible data contains; 

and (3) the cost- shifting analysis requires 

consideration of multiple factors. 

To this end, 

• Familiarize yourself with a company’s 

electronic information technology and 

computer operating systems and determine 

what information is created and 

retained by the company. 

• Determine how electronic information 

that may be relevant to a company’s legal 

needs is stored within the company and 

where it is stored. 

Second, determine methods that a company 

may use to restore and retrieve relevant 

information. Be mindful of the cost 

of retrieving electronic information and 

whether retrieval can be accomplished by 

a company’s document retention or IT personnel, 

if such personnel exist, or whether 

an outside vendor will be necessary. Id. 

Third, establish a relationship with a 

company’s document retention department 

and IT departments and personnel. Zubulake 

v. UBS Warburg LLC, 229 F.R.D. 422, 

439 (S.D.N.Y. 2004) (Zubulake V) (“In sum, 

counsel has a duty to effectively communicate 

to her client its discovery obligations so 

that all relevant information is discovered, 

retained, and produced. In particular, once 

the duty to preserve attaches, counsel must 

identify the sources of discoverable information. 

This will usually entail speaking 

directly with the key players, as well as the 

client’s IT personnel”). 

To this end, 

• Identify document retention and IT personnel 

to assist and guide you through 

the life of a lawsuit. 

• Educate document retention and IT personnel 

on the litigation process and the

type of information that another party 

will likely seek during particular types 

of lawsuits. 

• Identify early the document retention 

and IT personnel who may serve as 

30(b)(6) witnesses in litigation to testify 

regarding a company’s electronic 

systems and information. 

Fourth, identify and collect company 

document retention policies. Specifically, 

• Review and analyze document retention 

policies and discuss a company’s 

protocols for carrying out the policy 

with the policy custodian or custodians, 

meaning the individuals responsible 

for routine destruction of business 

documents. 

• If appropriate and feasible, address and 

correct any shortcomings in the policy 

or procedures implementing the policy. 

• Ensure the document retention policy 

is being adhered to and complied with 

exactly! In order to benefit from “routine 

good-faith” destruction of business 

information and avoid later spoliation 

instructions or even sanctions, the policy 

must be adhered to at all times. 

Doe v. Norwalk Community College, 248 

F.R.D. 372 (D. Conn. 2007); In Re Krause, 

367 B.R. 740 (Bankr. D. Kan. 2007); United 

Medical Supply v. United States, 77 Fed. Cl. 

257, 259 (Fed. Cl. 2007); Disability Rights 

Council v. Washington Metro. Transit Auth., 

242 F.R.D. 139, 146 (D.D.C. 2007); School- 

Link Technologies, Inc. v. Applied Resources, 

Inc., 2007 U.S. Dist. Lexis 14723 (D. Kan. 

Feb. 28, 2007); and Peskoff v. Faber, 244 

F.R.D. 54 (D.D.C. 2007). 

Best Practices in Anticipation of 

and During Litigation Discovery 

You will want to undertake the following 

tasks if you anticipate litigation, as well as 

during litigation discovery. 

First, at the moment that impending litigation 

is known or should have been known 

or expected, an attorney must become proactive. 

Zubulake v. UBS Warburg LLC, 220 

F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV). 

Once a party reasonably anticipates litigation, 

it must suspend its routine document 

retention and destruction policy and put in 

place a “litigation hold” to ensure the preservation 

of relevant documents. Id. Implementation 

of a “litigation hold” within a 

trucking company is required at this point, 

if not already in place. 

Second, form an electronic discovery 

team consisting of the attorney or attorneys 

who will work on the case, the trucking 

company’s IT personnel, the trucking 

company’s document retention personnel, 

the contact person within the company, 

in-house counsel and any other person 

deemed appropriate, to work together 

throughout litigation to gather and produce 

relevant electronic information properly 

and effectively. Communication and 

collaboration within the team are essential. 

National Ass’n of Radiation Survivors 

v. Turnage, 115 F.R.D. 543, 557–558 (N.D. 

Cal. 2006). Not only must a party identify, 

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Trucking Law 

Lawyers now have 

an affirmative duty to 

exhaust all possible 

sources of electronic 

information generated by 

trucking companies. 

locate and maintain relevant information, 

but it must also communicate these obligations 

to employees in possession of the relevant 

information. Id. 

To this end, 

• Anticipate the electronic information 

that an opposing party might seek 

and begin implementing your plan 

for retrieving and organizing potential 

information that you might have to 

produce. 

• Identify and interview document custodians 

and key players—persons, drivers 

or other employees who may have created 

or are storing information—very 

early in the process, to discuss the case 

and information that a company must 

retrieve. 

• Implement a plan to alter or suspend routine 

destruction of business records, to 

assure that relevant discoverable information 

is not destroyed during routine 

business operations. 

Third, determine the point at which preservation 

of all relevant information is necessary, 

which will likely be a date in the past, 

and distribute a preservation litigation hold 

letter throughout the company to all document 

custodians and key players to stress 

the importance of preservation from the determined 

preservation date until litigation 

concludes. Kronisch v. United States, 150 

F.3d 112, 126 (2nd. Cir. 1998). The duty may 

arise when an individual or entity should 

have known that specific documents and records 

would be relevant to future litigation. 

Id. There is no bright-line rule about when 

the duty begins. For a plaintiff, the duty may 

begin when the plaintiff determines that it 

has a sufficient basis to initiate a cause of 


action or at the time that it attempts to retain 

counsel to prosecute an action. For a 

defendant, the duty may begin when notice 

of a demand or claim is received. An 

attorney must, however, continually monitor 

throughout the litigation process adherence 

to preservation and litigation hold 

procedures and send follow- up preservation 

litigation hold letters to the appropriate 

custodians and key players within the 

company. It is counsel’s obligation to monitor 

compliance with a client’s preservation 

obligations. See, e.g., Heng Chan v. Triple 8 

Palace Inc., 2005 U.S. Dist. Lexis 16520, at 

*16 (S.D.N.Y. 2005); Fayemi v. Hambrecht 

and Quist, Inc., 174 F.R.D. 319, 326 (S.D.N.Y. 

1997); and Turner v. Hudson Transit Lines, 

Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991). 

Fourth, issue a preservation letter to 

opposing counsel immediately. 

• Remind opposing counsel of the general 

duty to preserve. 

• It is best also to cite specific documents 

and information that want opposing 

counsel to preserve, to avoid confusion. 

Fifth, provide copies of the document 

retention policy to the document custodians 

and key players and discuss with them 

their duty to preserve during the litigation 

process. 

Sixth, determine your discovery strategy 

for the case overall, and specifically, 

your strategy for obtaining needed relevant 

electronic information from the opposing 

party. 

To this end, 

• Determine what electronic information 

you may need from the opposing party. 

• Consider an early 30(b)(6) deposition 

of the opposing party, to assess 

the electronic information that may be 

available. 

Seventh, pursuant to the Federal Rules, 

confer with opposing counsel to discuss the 

electronic information relevant to the case 

and the means for retrieval and production. 

Develop a plan, and preferably commit 

the plan to writing, constituting the 

agreements. Communicating and effectively 

planning with the other side greatly 

reduces the burdens on the parties and the 

court. Fed. R. Civ. P. 26(f); Rebman v. Follet 

Higher Education Group, Inc., 2007 U.S. 

Dist. Lexis 32601 (M.D. Fla. 2007); and In 

re Seroquel Products Liab. Litig., 2007 U.S. 

Dist. Lexis 61287 (M.D. Fla. 2007). 

In particular, discuss (1) the types of 

documents and information sought by each 

party for production and the format in 

which the information is to be produced; 

(2) search terms and keywords and the 

best methods to be used when retrieving 

ESI and documents, including date ranges; 

and (3) how to handle inadvertent productions 

of privileged information and documents, 

including “clawback” provisions 

or opportunity for “quick peek” at documents. 

See The Scotts Co. v. Liberty Mutual 

Ins. Co., 2007 U.S. Dist. Lexis 43005 (E.D. 

Ohio 2007); Cache La Poudre Feeds, LLC 

v. Land O’Lakes Farmland Feed, LLC, 244 

F.R.D. 614, 628 (D. Colo. 2007) (“[I]n the 

typical case, responding parties are best 

situated to evaluate the procedures, methodologies, 

and technologies appropriate for 

preserving and producing their own electronic 

data and documents”); Hopson v. 

Mayor and City Council of Baltimore, 2005 

U.S. Dist. Lexis 29882 (D. Md. 2005); Williams 

v. Taser, Int’l, Inc., 2007 U.S. Dist. 

Lexis 40280, *7 (N.D. Ga. 2007). 

In addition, address the costs of retrieval 

and production and who will bear the cost. 

Toshiba America Elec. Components, Inc. v. 

Superior Court, 21 Cal. Rptr. 3d 532, 538– 

541 (Cal. Ct. App. 2004) (holding that a 

requesting party may be required to share 

in the expense of restoring backup tapes 

when the costs are “beyond those typically 

involved in responding to routine discovery”). 

Identify and discuss potential witnesses 

and key players at this juncture with 

opposing counsel, as well. 

Finally, promptly and adequately respond 

to the opposing party’s discovery requests. 

Keep the following in mind: 

• Remember, your duty to produce relevant 

information, including ESI, begins 

with initial disclosures. If possible, 

address ESI in your initial disclosures. 

• Review discovery requests thoroughly 

with document retention and IT personnel 

to find the information requested 

and determine how to retrieve and produce 

it. While company personnel may 

be knowledgeable about the company’s 

the electronic processes, they are typically 

strangers to the litigation process 

and its requirements. 

• Review all information prior to its production, 

specifically marking and withholding 

all privileged material.

• Maintain a detailed list of the information 

produced during discovery, 

the processes followed in identifying 

and retrieving the information, where 

the information was maintained and 

retrieved and how the information 

had been stored within the company. 

This procedure should avoid spoliation 

charges and related sanctions and establish 

the foundation for admissibility of 

the information as evidence. 

Post-Litigation Best Practices 

As long as post-trial motions and appeals 

are ongoing, all above procedures should 

be continually followed. Once a case is 

completely resolved, routine business procedures 

should resume in their entirety, including 

resumption of routine document 

retention policies. 

Post- litigation is an ideal time to reevaluate 

company procedures for the creation, 

storage, handling and destruction of documents 

and information, including ESI 

and document retention policies. See The 

Sedona Conference Working Group Series, 

The Sedona Guidelines: Best Practices & 

Commentary for Managing Information & 

Records in the Electronic Age (2004). 

Common Trucking Industry 

Sources for Electronic 

Information and Discovery 

Sources of electronically discoverable 

information can be quite numerous in a 

trucking company. Using the above practices 

along with effective and open communication 

with the trucking company and 

outside vendors that a company may utilize, 

a lawyer and trucking company can 

efficiently identify electronically stored 

information that may exist and its location, 

and begin the process of preserving 

and retrieving the information that a plaintiff 

may ultimately ask you to produce during 

litigation. 

Satellite Tracking and Monitoring Devices 

Many trucking companies, particularly 

large national and regional carriers, utilize 

satellite tracking and monitoring devices 

on trucks to track trucks, trailers and 

loads, and to communicate quickly with 

drivers. Many and various satellite systems 

are used by trucking companies. Basically 

understanding where the electronic information 

for these various systems is stored 

will allow a company and lawyer to begin 

navigating the roads to retrieval of the relevant 

electronic information. For example, 

Qualcomm systems, which produces 

OmniTRACS, OmniVision, OmniExpress, 

TrailerTRACS and SensorTRACS, consist 

of computer hardware installed on a tractor 

truck that communicates with two satellites 

orbiting the earth. The combined 

use of the onboard computer equipment 

and the satellites allows a driver and a dispatcher 

to communicate with one another 

electronically while a driver is on the road. 

Such communication abilities allow a driver 

and dispatcher to exchange text messages 

regarding the existing trip, a trip change 

or other driver routing information that 

may arise during a trip. Additionally, Qualcomm 

systems, depending on what tracking 

service plan a trucking company may 

choose to purchase, allows drivers to record 

their driving time and log data electronically, 

enter and monitor information 

about loads through the system, and also 

tracks for a company the location of trucks 

and the loads. Satellite systems also allow 

engine monitoring and monitoring of tractor 

performance, much as an electronic control 

module (ECM), as discussed below. 

In short, retrieving electronic information 

may require an attorney to search beyond 

a trucking company, for instance, 

with a satellite monitoring company that 

the trucking company utilizes. Case law 

has made clear that it is no longer enough 

to check only with the trucking company 

and rely on what the company retrieves and 

produces. Lawyers now have an affirmative 

duty to exhaust all possible sources of electronic 

information generated by trucking 

companies and to assure that these companies 

have diligently searched and preserved 

all relevant, identifiable, electronic information. 

For example, although Qualcomm, located 

in San Diego, California, converts the 

raw information received from its satellites 

and sends it electronically to the dispatch 

center of a trucking company in a readable 

form, the raw data remains on Qualcomm’s 

networks and servers and it may 

become necessary for an attorney to retrieve 

certain information from Qualcomm. 

Other information transmitted over satellite 

equipment may be stored at the company’s 

dispatch center or on a truck’s onboard 

computer hardware. Other situations could 

arise in which a trucking company no longer 

retains electronic information, depending 

on its electronic storage procedures and 

document retention policies, and you may 

need to obtain the information from a satellite 

company for a particular case. Satellite 

companies do retain this transmitted 

information on their systems. 

An ECM… can contain 

a wealth of electronic 

information related to 

a crash or other truckrelated 

litigation. 

As a result of this increased electronic 

information from technology such as satellite 

tracking systems, trucking companies 

now store millions of documents 

electronically. And while these systems 

have their obvious advantages, retrieving 

this electronic information requires 

increased knowledge and communication, 

as described above, between a lawyer and 

a trucking company. 

Electronic Control Modules 

Most tractor- trailers, particularly models 

from the past 10 years, are now equipped 

with electronic control modules (ECMs). 

An ECM is built into the engine of a truck 

and records onboard data from the truck 

during events such as a motor vehicle accident. 

It can contain a wealth of electronic 

information related to a crash or other 

truckrelated litigation. ECMs can record 

data such as speed, braking times, RPM 

data and mileage, as well as almost any 

other mechanical feature associated with 

a tractor- trailer. Unlike satellite tracking 

device systems, ECMs do not record data 

on a remote server, but instead, they record 

data onboard the actual modules in vehicles. 

Typically an ECM records data on a 

continuous loop of approximately 30 to 90 

days, so if a particular tractor is involved in 

an accident, early identification of the ECM 

E-Trucking, continued on page 74 



From the Chair 


An Excellent 

Resource That 

You Can Turn To 

Our committee lies 

at the crossroads 

of substantive law, 

procedural law 

and technology. 

Electronic discovery issues and costs continue to mount 

in litigation. Some of these burdens are the result of the 

sheer volume of data at issue when dealing with electronically 

stored information (ESI). Other times these 

burdens are the result of litigation tactics 

designed to exert pressure on producing 

parties. Either way, though the Federal 

Rules of Civil Procedure were amended just 

a few years ago, calls for further reform can 

be heard from a number of different corners 

today. 

At least 28 states have enacted specific 

rules or statutory provisions governing 

discovery of ESI, with many of those 

being modeled on the 2006 amendments 

to the Federal Rules of Civil Procedure. Just 

within the past several months, Arkansas, 

California and Tennessee have amended 

their discovery requirements, and other 

states continue to discuss possible amendments. 

But several years have passed since 

the ESI amendments to the Federal Rules 

in 2006, and most federal and a growing 

number of state courts expect parties and 

their counsel dealing with these issues to 

understand the unique challenges raised by 

ESI and further expect them to satisfy their 

preservation and discovery obligations in 

n Christopher V. Cotton is a partner at Shook, Hardy & Bacon LLP in the firm’s Kansas City, Missouri, office. He is chair of DRI’s 

Electronic Discovery Committee and a recent vice chair of the ABA’s Law & Technology Committee. He is also actively involved 

in the Sedona Conference Working Group 1 on Electronic Document Retention and Production and Working Group 6 on International 

Electronic Information Management, Discovery and Disclosure. 


a defensible manner. Yet, as technology 

changes and information stores grow, the 

responsibilities and expectations of counsel 

and companies continue to evolve. 

The costs and burdens of identifying, 

collecting, processing, reviewing and producing 

the perpetually expanding volumes 

of ESI have led many to call for reforms. 

Indeed, growing lists of organizations and 

courts have developed task forces and pilot 

programs designed to grapple with the 

issues in this evolving field. Many readers 

will be familiar with disputes over the 

form and manner of production of ESI. 

But what can be done to avoid these disputes 

and get the best results for your clients 

And disputes aside, how can you help 

clients reduce their costs related to ESI discovery 

Is centralizing data management 

something that might work for your client 

In this edition of For The Defense, the DRI 

Electronic Discovery Committee is pleased 

to present a series of articles to help explore 

these issues. You may find additional articles 

from the committee in future editions 

of DRI’s In-House Defense Quarterly, 

as well as the committee’s own newsletter, 

E- Discovery Connection. 

Aside from the articles you will find in 

the following pages, the DRI Electronic 

Discovery Committee is proud to report 

on a successful year in 2009. The committee 

hosted a seminar in May of last 

year, which focused on several issues of 

common concern. Attendees were treated 

to the opportunity to hear the perspectives 

of federal judges whose input is an 

invaluable resource in the development of 

effective e- discovery strategies. In addition, 

attendees benefited from the knowledge 

and experience of industry- leading 

corporate counsel and outside counsel 

who defend cases involving complex 

ESI issues. Seminar topics included Privacy 

& Data Security in the U.S.; Conflict 

Between the E.U. Data Directive and E.U. 

Countries’ Data Privacy Laws and Document 

Demands in U.S. Litigation; Case Law 

Update; Judicial Roundtable—Emerging 

eDiscovery Issues; Reconciling Disparate 

Data in Retention Policies; Emerging Ethics 

Issues; Defensible Search & Retrieval Meth- 

ods; and Cost- Effective Preservation Tips; 

among others. The seminar also included 

a keynote address by a renowned privacy 

expert who offered insights into dealing 

with European Union privacy laws, their 

impact on discovery, and emerging privacy 

trends in the United States. 

In 2010, the committee plans to host a 

series of webinar programs on e- discovery 

topics. The first program will examine 

ongoing e- discovery reform efforts. The 

Electronic Discovery Committee has historically 

been heavily involved in efforts to 

advocate for appropriate reform to the rules 

governing discovery and will continue to 

advocate for reasonable interpretations of 

discovery rules. In the past, the committee 

has prepared testimony for the Judicial 

Conference and the Discovery Rules Advisory 

Committee to ensure that the views of 

the defense bar were properly considered 

as those bodies drafted amendments to the 

Federal Rules of Civil Procedure. The committee 

has provided similar guidance to the 

state rulemaking entities, has been active 

in task forces to lobby for rule reform in 

state courts, and will continue to look for 

opportunities to advocate for appropriate 

rule reform and interpretation. 

DRI’s Electronic Discovery Committee 

lies at the crossroads of substantive law, 

procedural law and technology. Our task 

is to keep up with the constantly evolving 

case law under the Federal Rules amendments; 

track the addition of new state and 

local federal rules, guidelines and protocols 

regarding discovery; and stay abreast 

of technological changes that may impact 

a litigant’s ability to respond to requests 

for electronic information. The committee 

provides a vehicle for attorneys to share 

information and best practices related to 

discovery and a means to advocate for appropriate 

rule reform. The DRI Electronic 

Discovery Committee continues to be an excellent 

resource to which practitioners facing 

difficult and sometimes untested issues 

in this challenging area of law may turn. 

If you are not already a member of the 

DRI Electronic Discovery Committee, I 

invite you to join and take advantage of 

the great opportunities and resources that 

membership provides. Please contact me if 

you are interested in becoming a member 

or becoming more active in our committee, 

and please enjoy the articles that follow. 



Under the Current Rules 


and Tiffany F. Lim 

E-Discovery 

Reform and 

Cost Reduction 

While reform 

initiatives are 

underway, taking 

the time to develop 

and implement 

defensible information 

management 

practices will pay 

dividends for now. 

“There is little question but that civil litigation is 

expensive, beyond the means of most persons…. Yet 

an actual trial is not the main cost in a large number 

of cases. Rather, it is the preparation for a trial that is 

a virtually non- occurring event…. The 

most costly feature of federal practice, 

by most accounts, is the discovery process…. 

As trials disappear, discovery is 

only a path to settlement.” 

Hon. Patrick E. Higginbotham, Judge Robert 

A. Ainsworth, Jr. Memorial Lecture, 

Loyola University School of Law: So Why 

Do We Call Them Trial Courts, 55 SMU L. 

Rev. 1405, 1416, 1417 (2002). 

The Supreme Court has declared that 

the right to a jury trial “is a basic and fundamental 

feature of our system of federal 

jurisprudence” and that a right “so fundamental 

and sacred to the citizen… should 

be jealously guarded by the courts.” Jacob 

v. City of New York, 315 U.S. 752, 752–53 

(1942). Yet for years, evidence has been 

mounting that “the American jury system 

is dying out—more rapidly on the civil 

than on the criminal side of the courts 

and more rapidly in the federal than in 

the state courts—but dying nonetheless.” 

United States v. Reid, 214 F. Supp. 2d 84, 

99 (D. Mass. 2002). The dying trial is due 

in significant part to the ever- rising tide of 

e- discovery costs. Whether this tide can be 

turned depends on the success of reform 

efforts. Only by taking affirmative steps 

to address e- discovery issues can costs be 

managed and the way paved for parties to 

refocus their resources on the merits—and 

not the process—of litigation. 

The Culprit: Exorbitant 

E-Discovery Costs 

Though many commentators agree that 

the decline in jury trials is a result of the 

combination of various factors, there is 

no doubt that excessive e- discovery costs 

have played their part. These exorbitant 

costs are due, in part, to the fact that today, 

voluminous amounts of information reside 

in electronic format. In fact, from 1999 

through 2002, electronically stored information 

(ESI) increased 30 percent per year; 

by 2002, not even one-tenth of one percent 

of information was stored on paper. RAND 


n Christopher V. Cotton is a partner at Shook, Hardy & Bacon LLP in the firm’s Kansas City, Missouri, 

office. He is chair of DRI’s Electronic Discovery Committee and a recent vice chair of the ABA’s Law & Technology 

Committee. Tiffany F. Lim is an associate in the Tort Division of Shook, Hardy & Bacon LLP’s San 

Francisco office. She has worked on a variety of matters that include eDiscovery, data, and document management, 

class actions and complex litigation, and products liability.

Institute for Civil Justice, The Legal and 

Economic Implications of Electronic Discovery 

1 (2008), available at http://www.rand.org/ 

pubs/occasional_papers/2008/RAND_OP183.pdf. 

Indeed, a large corporation’s data center 

can contain more than 10,000 tapes, each of 

which can contain over 1 terabyte of information—the 

equivalent of a 200-mile-high 

stack of paper. Id. 

The proliferation of ESI has resulted in 

ever- increasing discovery costs. According 

to the Institute for the Advancement of 

the American Legal System (IAALS), one 

recent estimate placed the total revenue 

for e- discovery vendors at $1.5 billion in 

2006, and increasing to $4.8 billion by 2011. 

IAALS, The Emerging Challenge of Electronic 

Discovery: Strategies for American 

Businesses 3 (2008), available at http://www. 

du.edu/legalinstitute/pubs/EDiscovery- Strategies. 

pdf. In one case, restoring 93 tapes cost an 

astounding $6.2 million—approximately 

$67,000 per tape. Murphy Oil USA, Inc. v. 

Fluor Daniel, Inc., No. Civ.A. 99-3564, 2002 

WL 246439, at *2 (E.D. La. Feb. 19, 2002). 

More recently, the Office of Federal Housing 

Enterprise Oversight was forced to spend 

over $6 million—reportedly more than 

nine percent of the agency’s entire annual 

budget—to comply with an e- discovery 

subpoena. In re Fannie Mae Sec. Litig., 552 

F.3d 814, 816–17 (D.C. Cir. 2009). 

Transforming the Landscape: 

Current Reform Efforts 

Left uncontrolled, civil litigation will be 

reduced to a world of endless discovery disputes 

and rising costs in which many defendants 

with legitimate defenses but who 

cannot afford the costs of e- discovery are 

forced to settle feeble claims. Responding 

to such concerns, several organizations 

have implemented various reform initiatives 

with the goal of reducing unnecessary 

costs and burdens associated with 

e- discovery. 

The IAALS and the American 

College of Trial Lawyers 

The IAALS at the University of Denver is a 

national, nonpartisan organization comprised 

of former judges, attorneys, academics 

and journalists, and focuses on core 

issues such as the reform of the civil justice 

system. The ACTL Task Force on Discovery 

and Civil Justice works in collaboration 

with the IAALS to study the Federal Rules 

of Civil Procedure to determine whether 

there exists a fair and less- expensive 

approach to exchanging information. See 

ACTL—Task Force on Discovery and Civil 

Justice, http://www.actl.com/source/members/ 

actl_committeeRoster.cfmsection=Task_Force_ 

Committee_Chairs&co=DISCOVERY (last visited 

Dec. 8, 2009). 

In March 2009, the two organizations 

issued a final report on a joint project that 

examined the role of discovery and perceived 

problems in the civil justice system. 

See IAALS, Final Report on the Joint Project 

of the American College of Trial Lawyers 

Task Force on Discovery and the Institute for 

the Advancement of the American Legal System 

(2009), available at http://www.actl.com/ 

AM/Template.cfmSection=Home&template=/CM/ 

ContentDisplay.cfm&ContentID=4008 (Final Report). 

One of the major themes of the project 

was that electronic discovery, in particular, 

“needs a serious overhaul.” Id. at 2. The report 

identifies problems in areas such as 

pleadings, discovery, experts, dispositive 

motions, and judicial management, and it 

recommends a set of proposed principles 

intended to address these issues. See id. at 

4–25. Several of the proposed principles directly 

address problems in e- discovery: 

• “Promptly after litigation is commenced, 

the parties should discuss the preservation 

of electronic documents and 

attempt to reach agreement about preservation. 

The parties should discuss the 

manner in which electronic documents 

are stored and preserved. If the parties 

cannot agree, the court should make 

an order governing electronic discovery 

as soon as possible. That order should 

specify which electronic information 

should be preserved and should address 

the scope of allowable proportional electronic 

discovery and the cost among the 

parties.” Id. at 12 (emphasis added). 

• “Electronic discovery should be limited by 

proportionality, taking into account the 

nature and scope of the case, relevance, 

importance to the court’s adjudication, 

expense and burdens.” Id. at 14 (emphasis 

added). 

• While the obligation to preserve ESI “requires 

reasonable and good faith efforts to 

retain information that may be relevant to 

pending or threatened litigation,” it is “unreasonable 

to expect parties to take every 

Retention policies and 

schedules are of limited 

value, however, if they 

are not effectively applied 

to electronic systems. 

conceivable step to preserve all potentially 

relevant” ESI. Id. (emphasis added). 

• “Absent a showing of need and relevance, 

a party should not be required to 

restore deleted or residual electronicallystored 

information, including backup 

tapes.” Id. at 15. 

In November 2009, the IAALS and ACTL 

released two publications. The first publication, 

titled A Roadmap for Reform: Pilot 

Project Rules, sets out 12 rules meant to 

apply the proposed principles set forth in 

their Final Report. IAALS, A Roadmap for 

Reform: Pilot Project Rules (2009), available 

at http://www.du.edu/legalinstitute/pubs/ 

pilot_project_rules.pdf (Pilot Project Rules). 

The IAALS and ACTL intend that the rules 

be “tested in pilot projects around the 

country, with the projects monitored and 

measured to determine what works and 

what does not.” Id. at 1. The rules incorporate 

several of the proposed principles in 

the Final Report that address ESI, including 

(1) the requirement that parties meet and 

confer promptly after the commencement 

of litigation to discuss the preservation of 

any ESI; and (2) the requirement that prior 

to a mandatory initial pretrial conference, 

parties submit a joint report regarding their 

agreement or positions on issues relating to 

electronic information, including the production, 

continued preservation, and restoration 

of ESI and the form in which ESI is to 

be produced. Id. at 5. 

The second publication, A Roadmap for 

Reform: Civil Caseflow Management Guidelines, 

provides nine guidelines “designed 

to assist judges in effectively managing the 

flow of civil cases to ensure that all events 

in the life of a case are timely and meaningful.” 

IAALS, A Roadmap for Reform: Civil 

Caseflow Management Guidelines 1 (2009), 



available at http://www.du.edu/legalinstitute/ 

pubs/civil_caseflow_management_guidelines.pdf. 

These guidelines were also developed from 

the proposed principles set forth in the 

Final Report and are intended to supplement 

the Pilot Project Rules. Id. For example, 

the guidelines state that judges should 

“manage civil cases so as to ensure that the 

overall volume and type of discovery… 

Courts have increasingly 

emphasized the need for 

counsel to collaborate 

and communicate in 

order to reduce the 

costs of e- discovery. 

are appropriate to the specific circumstances 

of the case.” Id. at 5. Further, “the 

court should set an initial pretrial conference 

as soon as practicable after appearance 

of all parties,” unless requested sooner 

by any party. Id. Judges should also “play 

an active role in supervising the discovery 

process and should work to assure that 

the discovery costs are proportional to the 

dispute.” Id. 

The American Legislative Exchange 

Council Civil Justice Task Force 

The American Legislative Exchange Council 

(ALEC), a nonpartisan membership 

organization that works with state legislators 

to reform the civil justice system, developed 

model rules to govern e- discovery 

and privilege- waiver issues. See Alfred W. 

Cortese, Jr., Skyrocketing Electronic Discovery 

Costs Require New Rules 9, ALEC 

Policy Forum (2009), available at http:// 

www.alec.org/am/pdf/apf/electronicdiscovery.pdf 

(Skyrocketing Electronic Discovery Costs). 

ALEC has recognized that clear, brightline 

rules “would help discourage unnecessary 

and costly e- discovery by clearly 

delineating production responsibilities and 

properly allocating the costs and burdens 

of production.” Id. at 10. Unless parties 

and their counsel are given such guidance, 


“e- discovery threatens the ability of litigants 

and courts to resolve cases on the 

merits.” Id. 

ALEC’s model rules are expected to reduce 

the ability of litigants “to leverage the 

cost and volume of discovery to force settlements” 

and to “reduce unexpected and 

unnecessary discovery costs and burdens 

due to lack of planning, information and 

management.” Id. The rules should also increase 

the efficiency of the “preservation, 

collection, review, and production process.” 

Id. Under Rule 2, for instance, the discovery 

of all relevant, non- privileged, and reasonably 

accessible ESI should be permitted 

without court intervention, subject to the 

limitations applicable under the state’s discovery 

rules and the requirement that the 

benefit of the discovery outweighs the cost 

and burden production. Id. Discovery of 

ESI from not reasonably accessible sources, 

however, should only be required over objection 

and upon a court order based on a 

showing of good cause. Id. Further, under 

Rule 3, courts should impose sanctions on 

parties for failure to produce ESI only if the 

producing party “intentionally or recklessly 

violated an agreement or order issued in the 

action requiring the preservation of specified 

information.” Id. at 12. As for the form 

of production, Rule 4 provides that the requesting 

party should be permitted to specify 

the form or forms of production, while 

the responding party should be permitted 

to object; if no form is specified, production 

should be in a reasonably usable form. 

Id. Lastly, Rule 5 would require states to establish 

predictable, consistent standards for 

“protection against waiver of the attorneyclient 

privilege and work product immunity 

in connection with the inadvertent production” 

of protected information. Id. ALEC expects 

that rules based on the above concepts 

will significantly decrease the costs of electronic 

discovery. Id. 

Seventh Circuit Electronic 

Discovery Pilot Program 

In October 2009, the Seventh Circuit 

launched the first phase of its Electronic 

Discovery Pilot Program, developed by the 

Seventh Circuit Electronic Discovery Committee 

(the Committee) in response to continuing 

appeals by attorneys and business 

leaders for the reform of pretrial civil discovery. 

Seventh Circuit Electronic Discovery 

Pilot Program, Phase One: October 1, 

2009—May 10, 2010, Statement of Purpose 

and Preparation of Principles 7 (2009), 

available at http://www.ilcd.uscourts.gov/Statement%20- 

%20Phase%20One.pdf (Electronic 

Discovery Pilot Program). Formed to consider 

ways in which to reduce the costs of 

e- discovery, the Committee developed a set 

of principles intended to incentivize early 

and informal exchanges of information 

on common e- discovery issues. Id. at 7, 9. 

Principle 2.01(a), for instance, requires that 

even before their initial status conference 

with the court, “counsel shall meet and discuss 

the application of the discovery process 

set forth in the Federal Rules of Civil 

Procedure and these Principles to their specific 

case.” Id. at 11. During such meetings, 

counsel are to consider issues such as: 

(1) the identification of relevant and discoverable 

ESI; (2) the scope of discoverable 

ESI to be preserved by the parties; 

(3) the formats for preservation and production 

of ESI; (4) the potential for conducting 

discovery in phases or stages as 

a method for reducing costs and burden; 

and (5) the procedures for handling 

inadvertent production of privileged 

information and other privilege waiver 

issues under Rule 502 of the Federal 

Rules of Evidence. 

Id. at 11–12. 

The principles also call for cooperation 

during the pretrial discovery process. Id. 

at 9. Principle 1.02 states that an attorney 

who conducts discovery in a “cooperative 

manner” does not compromise his or her 

zealous representation of a client. Id. at 11. 

Principle 1.02 also recognizes that by failing 

to “cooperate in facilitating and reasonably 

limiting discovery requests and 

responses,” parties and their counsel raise 

litigation costs and increase the risk of 

being sanctioned. Id. 

Parties who appear in courts that have 

volunteered to implement the principles 

are required to comply with the principles, 

which have been incorporated into 

proposed standing orders. Id. at 25. Phase 

one of the program will end in May of 2010, 

during which the Committee will evaluate 

the principles and refine them as appropriate. 

Id. at 10. Phase two of the program will 

then proceed from June 2010 to May 2011, 

at which point the Committee will issue its 

final principles. Id.

Lawyers for Civil Justice 

Lawyers for Civil Justice (LCJ) is a national 

coalition of defense trial- lawyer organizations 

and corporations focusing on civil 

justice reform. Lawyers for Civil Justice— 

LCJ Mission Statement, http://www.lfcj.com/ 

process.cfmPageID=2 (last visited Dec. 8, 

2009). LCJ’s initiatives include reducing 

the costs associated with discovery, and 

streamlining the discovery process by forming 

coalitions among defense trial lawyer 

associations and corporate interests, representing 

the defense perspective in the legislative 

process, and addressing proposals 

which affect the civil justice system. Id. 

In December 2009, LCJ in collaboration 

with the Searle Center at Northwestern 

Law School announced a plan to conduct 

a survey of general counsel of Fortune 

200 companies. The survey is designed to 

explore the frequency and extent to which 

civil defendants are burdened with disproportionate 

discovery. The findings will be 

presented at the May 2010 Conference at 

Duke University. 

Duke University School of Law 

May 2010 Conference 

The Advisory Committee on Civil Rules, 

responsible for drafting and amending 

the Federal Rules of Civil Procedure, is 

sponsoring a conference at Duke University 

School of Law in May of 2010 that 

will focus on exploring issues regarding 

e- discovery and discussing potential solutions. 

See Hon. Mark Kravitz, Request from 

Federal District Judge Mark Kravitz, Chair, 

Judicial Conference Advisory Committee 

for Civil Rules (July 21, 2009), available 

at http://www.abanet.org/litigation/survey/0709- 

FederalJudicialCenter.html. The goal of the conference 

is to elicit constructive feedback 

regarding possible amendments to the Federal 

Rules of Civil Procedure and best practices 

for judges and attorneys. Id. 

The conference expects to rely on empirical 

research performed by the Federal 

Judicial Center, which will analyze the effectiveness 

of the current system and the 

input of attorneys as to how the system 

might be improved. Id. This research will 

be based on a questionnaire administered 

by the Federal Judicial Center to members 

of the American Bar Association Section of 

Litigation. Id.; see Civil Rules Survey, http:// 

vovici.com/wsb.dll/s/6212g3dd7bpaction=resume 

&index=0 (last visited Dec. 8, 2009). In addition, 

the Seventh Circuit Electronic Discovery 

Committee plans to present the results 

of the evaluation of the Electronic Discovery 

Pilot Program, which will be conducted 

by the IAALS, at the conference. Electronic 

Discovery Pilot Program, supra, at 25. 

Working within the Current 

System to Reduce Costs 

Reform initiatives may help reduce 

e- discovery costs, but those efforts are 

only part of the solution. Just as important 

are the steps companies can take to better 

manage information themselves before and 

after litigation arises. 

Information Management 

Information management involves an 

assessment of what information needs to be 

retained, how long it needs to be retained, 

and the most efficient method for retention 

and later disposition of the information. 

Retaining information unnecessarily 

can result in unnecessary costs and burdens 

to a company’s data systems as well as 

increased discovery costs during litigation 

when one may then need to wade through 

overloaded systems. To minimize these 

costs, companies must evaluate how much 

information to retain from a business perspective, 

and in terms of the legal and regulatory 

requirements that may apply. Based 

on these business and legal considerations, 

companies can develop retention policies 

and schedules. 

Retention policies and schedules are of 

limited value, however, if they are not effectively 

applied to electronic systems. Not long 

ago, paper files accounted for the bulk of the 

information at organizations, and retention 

policies and accompanying schedules could 

be applied in a relatively straightforward 

manner against those documents. Now 

though, various electronic data stores—email 

systems, shared drive space, databases, 

employee computer hard drives, etc.—are 

the predominant repositories of data. But 

information management policies and practices 

at many companies have lagged behind 

the deployment of technology, leaving those 

companies with ever- growing and unmanaged 

data repositories. To effectively manage 

information in today’s world, policies 

and practices must be developed and applied 

defensibly to ESI. 

Early Case Assessment and 

Conferencing Procedures 

Once litigation commences, a coordinated 

and proactive approach to discovery may 

help reduce costs. When the Federal Rules 

of Civil Procedure were first adopted in the 

1930s, the discovery process was intended 

to be a collaborative, party- driven process 

designed to exchange relevant information. 

The Sedona Conference, The Sedona 

Conference Cooperation Proclamation 1 

(2008) (Cooperation Proclamation). Today, 

however, discovery is often anything but 

a cooperative process. Many requesting 

parties—particularly those in asymmetric 

cases where the producing party has 

voluminous stores of information and 

the requesting party has a limited set of 

discoverable documents—use burdensome 

demands to create cost pressures as 

opposed to seeking documents relevant to 

any party’s claim or defense. Given this not 

uncommon experience, it is hardly surprising 

that a 2007 survey of in-house coun- 

National Foundation 

for Judicial Excellence 

The NFJE is a 501(c)(3) charitable 

organization that was founded by 

the leadership of DRI in October 

2004. Its mission is to support a 

strong, independent, responsive 

judiciary by providing state appellate 

court judges with tuition-free 

education. In just five short years, 

the NFJE has become a recognized 

leader in both the legal and judicial 

communities. 

The 6th Annual Judicial Symposium, 

The Law of Nuisance: Bother, 

Bore, or Basis for Broad Causes 

of Action, will be held July 16–17, 

2010, in Chicago. 

Encourage your state’s 

appellate judges to attend. 

To learn more about 

the NFJE or to make 

a contribution, please 

visit www.nfje.net. 



Maximizing efficiency 

and reducing costs requires 

a tireless search for the 

most appropriate emerging 

technology and approaches 

to fit a particular company. 

sel reported that 76 percent of companies 

did not believe that early meet- and- confer 

procedures reduced the cost or scope of 

e- discovery. IAALS, Electronic Discovery: A 

View from the Front Lines 13 (2008), available 

at http://www.du.edu/legalinstitute/pubs/ 

EDiscovery- FrontLines.pdf. 

Nonetheless, judges generally expect 

parties to cooperate in the discovery process. 

In In re Seroquel Products Liability 

Litigation, for example, the court lamented 

the parties’ failure to communicate during 

the discovery process and explained 

that “[i]dentifying relevant records and 

working out technical methods for their 

production is a cooperative undertaking, 

not part of the adversarial give and take.” 

244 F.R.D. 650, 659–60 (M.D. Fla. 2007). 

Because of defendant’s failure “to make a 

sincere effort to facilitate an understanding 

of what records [it] kept and what their 

availability might be,” the district court 

found that the imposition of sanctions was 

warranted. Id. 

Courts have increasingly emphasized 

the need for counsel to collaborate and 

communicate in order to reduce the costs 

of e- discovery. In Mancia v. Mayflower Textile, 

for instance, the United States District 

Court for the District of Maryland stressed 

that complying with the “spirit and purposes” 

of the discovery rules require counsel 

to cooperate in identifying and fulfilling 

legitimate discovery requests while at the 

same time avoiding discovery involving 

costs and burdens disproportionately large 

to the stakes. 253 F.R.D. 354, 357–58 (D. Md. 

2008). By engaging in “cooperation rather 

than contrariety, communication rather 

than confrontation,” parties will almost 


certainly produce less discovery and at a 

lower cost, while simultaneously obtaining 

helpful information more quickly. Id. 

at 358, 365. Parties, for instance, should 

make a good faith effort to collaborate on 

the development of search terms and use 

of search and retrieval methods, tools, 

and protocols most likely to generate relevant 

documents. See The Sedona Conference 

Best Practices Commentary on the Use 

of Search and Information Retrieval Methods 

in E- Discovery, 8 Sedona Conf. J. 189, 

195 (2007) (Best Practices Commentary). 

By doing so, parties can reduce the amount 

of time and human resources spent on 

reviewing irrelevant documents. 

Using Search and Retrieval 

Technology to Reduce Costs 

Not long ago, the only avenue available for 

review of potentially responsive documents 

was a manual search alone. Human evaluation 

and review has traditionally been the 

benchmark of accuracy and completeness. 

Lacking an authoritative guide regarding 

the defensibility of search technology, the 

bench and bar have historically relied on 

the common discovery experience: manual 

searching. However, “[a] consensus 

is forming in the legal community that 

human review of documents in discovery 

is expensive, time consuming, and errorprone.” 

See Best Practices Commentary, 

supra, at 195. 

In light of the exponential growth of 

electronically stored information and the 

drawbacks of manual searching, the use 

of search and retrieval technologies in one 

form or another has become a common 

practice to narrow the set of documents 

collected and/or reviewed for discovery 

purposes. And though once frowned upon 

as unreliable, search technologies are now 

being accepted, if not expected, by more 

and more courts. Thus, while bloated electronic 

systems may be partially to blame 

for the excessive costs of e- discovery, technology 

may help solve the problems, as the 

emergence of new search- and- retrieval systems 

“are transforming the way lawyers litigate 

and, collectively, offer real promise 

that huge volumes of information can be 

reviewed faster, more accurately and more 

affordably than ever before.” Best Practices 

Commentary, supra, at 192. Counsel who 

have researched and effectively managed 

the use of state-of-the-art search technologies 

to identify responsive documents have 

significantly reduced costs associated with 

attorney review of documents. 

Educating Stakeholders 

of the Legal System 

Not long from now, the “e” in e- discovery 

will likely fade away from our vernacular, 

and we will all be left to simply deal with 

discovery again. Of course, the nature and 

scope of that discovery will be largely dictated 

by ESI, which has found a place in the 

Federal Rules and is certainly here to stay. 

The Sedona Conference has suggested 

the development and distribution of “practical 

toolkits” to provide training to lawyers, 

judges, other professionals, and law 

students “in techniques of discovery cooperation, 

collaboration, and transparency.” 

Cooperation Proclamation, supra, at 3. 

These toolkits will include a variety of 

components: 

[T]raining programs tailored to each 

stakeholder; a clearinghouse of practical 

resources, including form agreements, 

case management orders, discovery protocols, 

etc.; court- annexed e- discovery 

ADR with qualified counselors and 

mediators, available to assist parties of 

limited means; guides for judges faced 

with motions for sanctions; law school 

programs to train students in the technical, 

legal, and cooperative aspects 

of e- discovery; and programs to assist 

individuals and businesses with basic 

e- record management, in an effort to 

avoid discovery problems altogether. 

Id. 

The principles adopted by the Seventh 

Circuit Electronic Discovery Committee 

for the Electronic Discovery Pilot Program 

also provide guidance on education. Principle 

3.01, for example, requires counsel 

to have familiarized themselves with the 

following before filing an appearance: (1) 

the e- discovery provisions of the Federal 

Rules of Civil Procedure, as well as state 

rules of procedure; (2) the Advisory Committee 

Report on the 2006 Amendments to 

the Federal Rules of Civil Procedure; and 

(3) the pilot program’s principles. Electronic 

Discovery Pilot Program, supra, at 16. 

Additionally, Principle 3.02 requires counsel, 

judges, and parties to litigation to con- 

E-Discovery Rules, continued on page 75


Best Practices 

By Mark S. Sidoti, 

Scott J. Etish 

and Stephen J. Finley, Jr. 

Form and Manner 

of Production 

under FRCP34 

As aspects of Rule 

34 remain unclear, 

cooperation with 

adversaries and 

active management 

of e-discovery issues 

will help ensure 

effective and efficient 

discovery practice. 

In December 2006, the Federal Rules of Civil Procedure 

were amended in an attempt to aid litigants and curtail 

various forms of discovery abuses by providing guidance 

in conducting electronic discovery. Since the 

rules have been amended, courts have grappled 

with numerous issues relating to their 

implementation. Some of these issues— 

like those discussed in this article—combine 

requirements under the new rules that 

supplement elements of the federal rules 

that long predate the amendments and 

even e- discovery itself. Amended Federal 

Rule of Civil Procedure 34 presents such a 

situation. Rule 34 raises two related issues: 

the manner in which documents are produced 

and the form those documents may 

take. It states, in pertinent part, 

(i) A party must produce documents as 

they are kept in the usual course of business 

or must organize and label them 

to correspond to the categories in the 

request; (ii) If a request does not specify 

a form for producing electronically 

n Mark S. Sidoti is a director at Newark, 

New Jersey- headquartered Gibbons P.C., 

based in the firm’s New York City office and 

chair of the firm’s E- Discovery Task 

Force. Mr. Sidoti is the vice chair of 

DRI’s Electronic Discovery Committee. 

Scott J. Etish and Stephen J. 

Finley, Jr. are associates in the Philadelphia 

office of Gibbons and members 

of the Task Force. 

stored information, a party must produce 

it in a form or forms in which it is 

ordinarily maintained or in a reasonably 

usable form or forms. 

Fed. R. Civ. P. 34(b)(2)(E)(i–ii). 

Because the options presented in section 

(b)(2)(E)(i) have been part of Rule 34 for 

many years, prior to the 2006 rule amendments, 

courts occasionally addressed disputes 

focused on the manner of production 

of documents, including what constitutes 

compliance with these options. The amendments 

to Rule 34 introduce a new element to 

the production analysis—one that pertains 

more to the form electronic information will 

take when produced (e.g., original or native 

form, image form such as .tiff and .pdf, 

etc.). Thus, in recent years, courts have focused 

more on whether the parties followed 

the added procedural requirements of the 

amended rule by sufficiently identifying, or 

objecting to, representations regarding the 

form that electronically stored information 

(ESI) will take when produced. 

The need for adversaries to cooperate in 

the digital age of discovery is often highlighted 

in disputes over form and manner 

of document production under Rule 34. 

Courts are growing increasingly frustrated 

with parties who make no effort to work 

and communicate with opposing counsel in 



an effort to prevent these disputes. In July 

2008, the Sedona Conference released its 

Cooperation Proclamation in an attempt to 

help shift the culture of fact discovery from 

“adversarial conduct to cooperation.” See 

The Sedona Conference, The Sedona Conference 

Cooperation Proclamation,” (2008) 

(available at http://www.thesedonaconference. 

org/dltFormdid=proclamation.pdf. While the 

The manner in which 

documents are produced, 

and the organization of 

that production, is left to 

the producing party. 

Cooperation Proclamation recognizes that 

lawyers are retained to be “zealous advocates” 

for their clients, it also urges lawyers 

to take note of the fact that “they bear a professional 

obligation to conduct discovery in 

a diligent and candid manner,” and stresses 

that zealous advocacy is not inconsistent 

with cooperation in the discovery process. 

Id. In addressing discovery disputes, numerous 

federal judges have wholeheartedly 

endorsed the ideology shift outlined in the 

Cooperation Proclamation, and have urged 

parties to recognize the benefits of working 

together in discovery disputes. See, e.g., William 

A. Cross Const. Assoc., Inc. v. Am. Mfrs. 

Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D. N.Y. 

2009). (“This Court strongly endorses The 

Sedona Conference Cooperation Proclamation”). 

There can be no serious question 

that applying the principles outlined in the 

Cooperation Proclamation will help prevent 

discovery disputes related to the form and 

manner of production. 

This article will address the form and 

manner of production requirements encompassed 

in amended Rule 34, the interplay 

between the requirements and related implications 

on the heightened need for cooperation 

in the electronic discovery process. 


Federal Rule of Civil Procedure 34(b) 

(2)(E)(i)—The Manner of Production 

Rule 34b)(2)(E)(i)—an important vestige 

of old Rule 34—addresses the procedural, 

or “manner,” requirements for 

litigants making a document production. 

This section gives the producing party the 

option to produce documents (including, of 

course, ESI) as they are “kept in the usual 

course of business” or “organize[d] and 

label[ed]… to correspond to the categories 

in the request.” Fed. R. Civ. P. 34(b) 

(2)(E)(i). However, Rule 34 does not define 

the term “usual course of business” and a 

party choosing to produce documents as 

maintained in the ordinary course of business 

“bears the burden of demonstrating 

that the documents made available were 

in fact produced consistent with that mandate.” 

Pass & Seymour, Inc. v. Hubbell Inc., 

255 F.R.D. 331, 334 (N.D.N.Y. 2008) (noting 

that, in addition to organizing document 

responses to specific requests, Rule 

34 “alternatively permits the production of 

responding documents within the parties’ 

possession, custody or control as they are 

customarily maintained, without providing 

further guidance regarding this alternative 

protocol”) (citations omitted). In 

satisfying this burden, a party “must do 

more than merely represent to the court 

and the requesting party that the documents 

have been produced as they are 

maintained.” Id. at 334. Specifically, a court 

will not be convinced of the adequacy of a 

party’s production where the only statement 

of record defending the production is 

based on the representation of counsel. 

In Pass & Seymour, a patent infringement 

suit, defendant Hubbell Incorporated (Hubbell) 

sought an order compelling plaintiff 

Pass and Seymour (P&S) to organize 

the documents produced and to designate 

which documents were responsive to each 

document demand. In response to Hubbell’s 

72 separate document discovery requests, 

P&S produced over 400,000 pages 

of digital documents which were contained 

in 202 unlabeled folders and which could 

be text searchable with the use of litigation 

software. P&S contended that its document 

production was proper as the documents 

were produced as they were maintained and 

that it had no obligation to further organize 

the documents nor provide an index of the 

same. In support of its position, P&S offered 

“only an attorney’s statement to the effect 

that the documents produced have been assembled 

as they have been maintained in 

the usual course of the company’s business, 

without further elaboration.” Id. 

The Northern District of New York rejected 

P&S’s position. The court explained 

that “[a]s its plain language reflects,… 

[Rule 34] contemplates that a party selecting 

this option disclose information to the 

requesting party regarding how the documents 

are organized in the party’s ordinary 

course of business.” Id. at 335. The 

court further explained that if the producing 

party is not going to provide access to 

the requesting party “to inspect the documents 

where they are maintained,” the 

produced documents should be “organized 

and labeled and, if appropriate, indexed just 

as they are maintained by the producing 

party.” Id. at 336. Should a producing party 

be justifiably hesitant at the prospects of 

opening its documents and electronic materials 

to an adversary, then it must comply 

with the Rule’s mandate that a production 

be organized and labeled in the manner the 

documents are ordinarily maintained. 

This burden applies equally when the 

government is a party. For example, in a 

securities fraud case brought by the Securities 

and Exchange Commission (“SEC”) 

against a corporation and a number of 

individual defendants, including the corporation’s 

former chief executive officer 

(“CEO”), a Southern District of New York 

court addressed a discovery dispute centered 

around the SEC’s production of 1.7 

million documents (totaling 10.6 million 

pages), contained in 36 different Concordance 

databases. SEC v. Collins & Aikman 

Corp., 256 F.R.D. 403, 407 (S.D.N.Y. 2009). 

The CEO challenged the SEC’s response to 

his requests for production of documents, 

and the SEC argued that it “does not maintain 

a document collection relating specifically 

to the subject addressed. Rather it 

provided an omnibus collection of indices, 

investigative documents, scanned paper 

documents, and audio/video media,” and 

“also provided the location within Concordance 

document databases of documents 

identified in the Complaint.” Id. The SEC 

asserted that this production was consistent 

with how it maintained documents 

in the ordinary course of business. The 

court observed that the Rule was designed 

for businesses, or entities that functioned 

as commercial enterprises, or for records 

“resulting from ‘regularly conducted activ-

ity.’” Id. at 412. The court explained that 

if those requirements are not met, then 

records must be produced organized and 

labeled responding to the requester’s specific 

requests. 

In Ak-Chin Indian Comty v. United 

States, No. 06-932 L, 2009 U.S. Claims 

LEXIS 7 (Fed. Cl. Jan. 14, 2009), the United 

States Court of Federal Claims held that 

documents transferred into a storage facility 

are not considered to be kept in the 

“usual course of business.” In Ak-Chin, defendants 

responded to a document request 

by making documents available for inspection 

at its storage facility. The documents in 

question were originally kept in an agency 

office, and then subsequently moved to an 

off-site storage facility. In preparation for 

the move, the documents were indexed 

by using the “Box Index Search System” 

(“BISS”), a commercial software application 

that stores information about the 

source, files and documents in each box 

and then subsequently entered into the 

database. Id. at *2–3. Plaintiffs argued that 

documents kept in storage do not equate 

to the “ordinary course of business” and 

Rule 34(b)(2)(E)(i) did not apply, and the 

documents, therefore, would have to be 

organized and labeled to correspond with 

the document request pursuant to Rule 

34(b)(2)(E)(ii). Id. at *5–6. As a result of 

the reorganization, the documents were 

“irrevocably shuffled around and placed 

in a different order than they had been 

kept while being actively used by agency 

personnel,” making it “difficult to trace 

where a file folder was originally stored.” 

Id. at *7–8. 

The Ak-Chin court found support for 

its ruling in In re Sulfuric Acid Antitrust 

Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005), 

which examined this issue and concluded 

that stored documents “are no longer kept 

in the ‘usual course’ of business, they are 

kept in the usual course of ‘storage.’” Ak- 

Chin, 2009 U.S. Claims LEXIS 7, at *8–9. 

Under the Ak-Chin and In re Sulfuric Acid 

line of cases, a producing party may not 

avail itself of the option to produce materials 

as they are kept in the ordinary course 

of business where those materials have 

been transferred to storage, and thus are no 

longer kept in the ordinary course of business. 

The only option left for such a party 

is to “organize and label” the materials to 

correspond to the requesting party’s document 

requests. However, the rulings in Ak- 

Chin and In re Securities Litigation do not 

stand as a per se rule that a party may not 

produce documents as they are maintained 

in a storage facility. In order for a producing 

party to produce documents in the same 

manner in which they are kept in a storage 

facility, the producing party must prove 

that the documents are organized in storage 

in the same manner as they were kept in 

the ordinary course of business before they 

were shipped out to storage. The materials 

in Ak-Chin, however, were moved out of the 

party’s place of business into storage, substantially 

reorganized and then moved into 

a storage facility. As a result, the documents 

were kept in a different location in a manner 

different from how they were maintained 

in the ordinary course of business. 

It is clear, however, that the producing 

party has the discretion to choose between 

the two options presented by section 

(b)(2)(E)(i). See Suarez Corp. Indus. v. 

Earthwise Techs., Inc., No. CO7-5577RJB, 

CO7-2020RJB, 2008 U.S. Dist. LEXIS 66560 

(W.D. Wash. July 17, 2008). In Suarez, in response 

to 136 document requests, defendant 

Earthwise Technologies, Inc. (Earthwise) 

produced 55,000 e-mails, six boxes of documents 

containing approximately 8,700 

pages in .pdf format and nine CDs of data in 

native format. Plaintiff Suarez Corporation 

Industries (Suarez) claimed this amounted 

to nothing more than a “document dump” 

and argued that it should be permitted to direct 

Earthwise to organize the production 

in a manner of its choosing. Id. at *6. The 

court determined that the term “form” in 

Rule 34 does not refer to the organization 

of a party’s production. Therefore, Suarez’s 

contention that it could dictate the structure 

of Earthwise’s production was without 

merit. This, however, did not end the issue. 

The court found that Earthwise made no 

effort to convey whether the materials were 

produced in the manner in which they are 

kept in the ordinary course of business or 

were organized such that the material produced 

corresponded to Suarez’s requests. 

Therefore, the court granted Suarez’s motion 

to compel. 

The Suarez decision makes clear that the 

manner in which documents are produced, 

and the organization of that production, 

is left to the producing party under Rule 

34(b)(2)(e)(i). A party may be directed 

to defend the manner of its production by 

proving that the materials produced were 

produced in the same manner as they are 

kept in the ordinary course of business, 

or in a manner structured to match the 

requesting party’s document requests. If 

this is challenged, the producing party can 

expect a court to carefully scrutinize its 

A court is unlikely 

to order a party to reproduce 

electronic 

documents in their original 

(typically native) format. 

production to ensure compliance with Rule 

34(b)(2)(e)(i). 

Federal Rule of Civil Procedure 34(b) 

(2)(ii)—The Form of Production 

Rule 34(b)(2)(E)(ii) introduces a new element 

to the production analysis relating to 

the form of electronic documents. It provides 

that “[i]f a request does not specify 

a form for producing electronically stored 

information, a party must produce it in 

a form or forms in which it is ordinarily 

maintained or in a reasonably usable form 

or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). 

While it echoes a similar concept to the 

immediately preceding subsection by referencing 

the manner in which data is “ordinarily 

maintained,” on close reading this 

added subsection relates not to issues of 

manner of production, but to the actual 

form the electronic data can take when produced 

without a prior specification by the 

demanding party as suggested by preceding 

sections of Rule 34. 

The Advisory Committee’s comments 

to the 2006 amendments discuss the issues 

raised by the form of production of ESI, and 

explain the framework established by the 

Rule to address the production of ESI. 

The amendment to Rule 34(b) permits 

the requesting party to designate the 

form or forms in which it wants electronically 

stored information produced. The 



form of production is more important 

to the exchange of electronically stored 

information than of hard-copy materials, 

although a party might specify 

hard copy as the requested form. Specification 

of the desired form or forms 

may facilitate the orderly, efficient, and 

cost- effective discovery of electronically 

stored information. The rule recognizes 

Parties requesting ESI 

should be specific in their 

instructions regarding 

production form. 

that different forms of production may 

be appropriate for different types of electronically 

stored information. Using 

current technology, for example, a party 

might be called upon to produce word 

processing documents, e-mail messages, 

electronic spreadsheets, different image 

or sound files, and material from databases. 

Requiring that such diverse types 

of electronically stored information all 

be produced in the same form could 

prove impossible, and even if possible 

could increase the cost and burdens 

of producing and using the information. 

The rule therefore provides that the 

requesting party may ask for different 

forms of production for different types 

of electronically stored information. 

Fed. R. Civ. P. 34(b) advisory committee’s 

note (2006). 

While Rule 34(b)(2)(E)(ii) requires a 

party to produce documents in a “reasonably 

usable” format, the Advisory Committee 

warns that it is not permissive to 

“convert electronically stored information 

from the form in which it is ordinarily 

maintained to a different form that makes 

it more difficult or burdensome for the 

requesting party to use the information 

efficiently in the litigation.” Fed. R. Civ. P. 

34(b) advisory committee’s note (2006). 

This admonition has been affirmed by several 

courts. See, e.g., Bray & Gillespie Mgmt. 

v. Lexington Ins. Co., No. 6:07-cv-222-Orl- 

35KRS, 2009 U.S. Dist. LEXIS 21250 (M.D. 


Fla. Mar. 4, 2009). In addition, the Advisory 

Committee explained that: 

A party that responds to a discovery 

request by simply producing electronically 

stored information in a form of its 

choice, without identifying that form 

in advance of the production in the 

response required by Rule 34(b), runs a 

risk that the requesting party can show 

that the produced form is not reasonably 

usable and that it is entitled to production 

of some or all of the information in 

an additional form. 

Fed. R. Civ. P. 34(b) advisory committee’s 

note (2006). 

Several decisions since the 2006 amendments 

demonstrate that a court is unlikely 

to order a party to reproduce electronic 

documents in their original (typically native) 

format, including their accompanying 

metadata, in the absence of an agreement as 

to the form of ESI and/or a specific request. 

See D’Onofrio v. SFX Sports Group, Inc., 247 

F.R.D. 43 (D.D.C. 2008); Aguilar v. Immigration 

& Customs Enforcement Div., 255 F.R.D. 

350 (S.D.N.Y. 2008). In D’Onofrio, plaintiff 

filed suit against her former employer, asserting 

claims of gender discrimination and 

hostile work environment. Plaintiff filed a 

motion to compel pursuant to Federal Rule 

of Civil Procedure 34 and also sought sanctions 

against the employer for its conduct 

during discovery. In particular, plaintiff 

was seeking production of a business plan 

and defendants’ e-mails in their original 

electronic format with accompanying metadata. 

Plaintiff argued that defendants were 

obligated to produce the business plan and 

e-mails in their original format, because 

Rule 34 only permits the production of 

documents outside of their original format 

if necessary, and no such necessity existed 

in this case. The court rejected plaintiff’s 

request, in part, because plaintiff failed to 

specify the form or forms of the documents 

in her discovery requests. 

Several other recent cases demonstrate 

that parties requesting ESI should be specific 

in their instructions regarding production 

form. In Covad Communications. 

Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 

2008), despite finding ambiguity in the 

instruction for the form of production in 

plaintiff’s document request, the court held 

that producing 35,000 hard copy pages of 

e-mails was simply unacceptable. The court 

ordered plaintiff to copy e-mails in native 

format onto a disk, but ordered the parties 

to share the costs. The court noted that 

while the cost of production is normally 

on the producing party, the vagueness of 

plaintiff’s initial request as to production 

form and acceptance by plaintiff of some 

hard copy documents, was tantamount to 

both parties going “through the same stop 

sign.” Id. at 151. As noted by the court: 

This whole controversy could have been 

eliminated had [plaintiff] asked for the 

data in native format in the first place 

or had [defendant] asked [plaintiff] in 

what format it wanted the data before 

it presumed that it was not native. Two 

thousand dollars is not a bad price for 

the lesson that the courts have reached 

the limits of their patience with having 

to resolve electronic discovery controversies 

that are expensive, time consuming 

and so easily avoided by the 

lawyers’ conferring with each other on 

such a fundamental question as the format 

of their productions of electronically 

stored information. 

Id. 

In In re Classicstar Mare Lease Litigation, 

MDL No. 1877, No. 5:07-cv-353-JMH, U.S. 

Dist. LEXIS 9750 (E.D. Ky. Feb. 2, 2009), 

defendant produced financial documents 

in .pdf and Excel format, and followed up 

with production in searchable .tiff format. 

Unsatisfied, plaintiff demanded that 

the documents be produced in native format. 

The court held that defendant had not 

violated Rule 34(b)(2)(E) because plaintiff 

had not specifically requested native 

format production in its request and defendant 

produced the documents in a “reasonably 

usable format.” The court ordered 

re- production in native format based on an 

earlier promise by defendant that it would 

produce the documents in native format 

if plaintiff purchased the necessary software 

(which it had). Because defendant 

had already produced the information in 

a reasonably usable format, though, and 

because plaintiffs had failed to specify the 

format of production in their request, the 

court shifted the cost of the re- production 

to plaintiffs. 

In Autotech Technologies v. Automationdirect.com, 

Inc., 248 F.R.D. 556 (N.D. Ill. 

2008), the court addressed defendant’s motion 

to compel plaintiff to produce a copy of

an electronic document called the “EZTouch 

File Structure” in native format (Microsoft 

Word) with accompanying metadata. In 

response to defendant’s document request 

(which did not specify a request for metadata), 

plaintiff produced a copy of the EZ- 

Touch File Structure in both .pdf format 

on a compact disc and paper format. Despite 

the fact that defendant did not specifically 

request metadata, it argued that the 

native format of the EZTouch file contained 

the document’s metadata and that this data 

would yield information about the document 

at the time it was created, as well as 

subsequent modifications. Plaintiff claimed 

that it had complied with defendant’s requests 

for production and produced the 

requested information in a permissible format. 

The court concluded that if the file was 

not produced in native format, as defendant 

claimed, “then the question is whether either 

the .pdf file and the hard copy are reasonably 

usable forms.” Id. at 559. Defendant 

insisted that the production was not reasonably 

usable because the metadata was missing 

from the production. The court denied 

defendant’s motion to compel, and relied 

on the general rule that a court will not order 

the production of metadata when the 

requesting party did not include such a demand 

in its initial request. 

Bray & Gillespie is noteworthy in the 

detailed consideration given by the court 

to the conduct of the parties and their 

attorneys in the course of discovery. In an 

insurance coverage dispute, defendant Lexington 

Insurance Company (Lexington) 

served plaintiff Bray and Gillespie (B&G) 

with requests for production of documents 

in which it requested all ESI be produced in 

“native format without alteration or deletion 

of metadata.” Bray & Gillespie Mgmt., 

LLC, 2009 U.S. Dist. LEXIS 21250, at *22. 

Lexington also directed B&G to indicate 

the hardware and software program(s) 

“needed to translate the information into 

usable form in the information’s native format.” 

Id. at *13. The court noted that B&G 

did not object to Lexington’s request for ESI 

in the specified form, or the accompanying 

instructions and definitions, at the time the 

requests were served or when the matter 

was discussed at the court’s Rule 26 conference. 

Instead, B&G served Lexington with 

twenty- seven discs containing .tiff images 

of paper documents. Lexington argued 

that this production was invalid, as the 

parties agreed that only paper documents 

could be produced in this format. Lexington 

argued that B&G failed to produce the 

documents in the format requested and 

that B&G failed to object to its request for 

production of documents, in native format, 

when it served a second set of requests for 

production. 

After a hearing, the court sided with 

Lexington and found that all of the documents 

produced by B&G, some 200,000 

in total, were .tiff files with no metadata 

and no coding that would allow Lexington 

to search the documents. The court 

accepted the testimony of Lexington’s 

expert that B&G had employed a program 

called Extractiva to convert native format 

ESI into the .tiff images that were produced, 

and the court concluded that B&G failed to 

produce documents in a reasonably usable 

form as required by Rule 34. 

After an additional hearing during which 

former counsel provided testimony regarding 

the steps taken to produce documents 

and ESI, the court “named names” in assessing 

the conduct of the parties and described 

in particular detail the behavior of 

counsel over the course of nearly two years 

of litigation. Ultimately the court sanctioned 

B&G, and its counsel, finding that the conduct 

of both was sufficiently egregious as to 

warrant B&G and its counsel to reimburse 

Lexington for the costs associated with waging 

the battle over e- discovery, including attorneys’ 

fees and expert fees. 

What is clear from these decisions is that 

when parties fail to discuss the form of production 

prior to commencing discovery, 

and fail to specify the form of production 

in their discovery requests, both of which 

are now required by amended Rule 34, each 

side is essentially rolling the dice as to how 

a court will interpret what constitutes a 

“reasonably usable form” when disputes 

arise as to the producing party’s compliance 

with the “no prior agreement” mandates 

of Rule 34(b)(2)(E)(ii). Given that 

each case requires the parties to undertake 

a particularized analysis of the e- discovery 

issues present, and courts have not articulated 

a universal format for production of 

ESI, communication between the parties 

is the benchmark for evaluating the conduct 

of the parties and the sufficiency of 

their productions. 

When parties fail 

to discuss the form 

of production prior to 

commencing discovery,… 

each side is essentially 

rolling the dice. 

Best Practices Relating to Manner 

and Form of Production 

A litigant can avoid some of the pitfalls 

suffered by the parties to the cases discussed 

in this article by adhering to several 

practices. All document demands 

in Federal court matters should clearly 

specify the desired form of ESI production. 

All demand recipients should immediately 

assess these form specifications, 

and promptly object in writing if they are 

unreasonable or unduly burdensome, including 

from a cost standpoint. Parties 

are free to select a form of production, but 

must carefully assess whether any modifications 

to the ordinary course form of ESI 

would give rise to a challenge that the production 

is not “reasonably usable.” Here, 

a central theme will be whether or not the 

chosen form “degrades” the ease of review 

and searchability of the documents as they 

exist in the ordinary course. Finally, producing 

parties must take care to ensure 

that the manner of production satisfies 

either option available under Rule 34. 

E- discovery practice is best managed 

when the parties undertake early in the 

litigation, preferably in the Rule 26 conference, 

to address e- discovery issues they 

anticipate will arise. This includes producing 

ESI in a form and manner consistent 

with Rule 34(b)(2)(E). As the meaning of 

key terms under Rule 34 and the interplay 

between 34(b)(2)(E)(i) and (ii) remain 

unclear, active management of e- discovery 

issues throughout the litigation, and cooperation 

with one’s adversary, can help 

ensure effective and efficient e- discovery 

practice while avoiding costly motion practice. 



A Long Engagement 

By Adam Cohen 

Has Information 

Technology Solved 

E-Discovery 

The need remains to 

recognize and address 

the gap between the 

services that enterprise 

content management 

vendors and electronic 

discovery technology 

providers can offer. 

n Adam Cohen is a senior managing director with the technology practice at 

FTI Consulting Inc. in New York City. He is a member of DRI’s Electronic Discovery 

Committee as well as the steering committee of the Product Liability 

Committee’s E- Discovery Specialized Litigation Group. 


Leading up to and since the amendments to the Federal 

Rules of Civil Procedure (FRCP) in 2006, e-discovery 

has been viewed as a “hot” market with a lot of growth 

potential. As the current economic recession has stalled 

spending across a variety of industries, 

including dramatic cuts within the legal 

industry, e- discovery spending continues 

to increase. A recent study from analyst 

firm Gartner estimates that e- discovery 

software spending alone will total over 

$1.2 billion in 2010 and reach a 21.2 percent 

compound annual growth rate from 2008– 

2013 Tom Eid, Gartner, DataQuest Insight: 

E- Discovery Software Marketplace Continues 

its High-Growth Pace (Nov. 16, 2009). 

Not many industries can claim a 21 percent 

CAGR today, which is why e- discovery 

is drawing the attention of many vendors 

that are unfamiliar with the legal industry 

in general and e- discovery requirements in 

particular. But, as the old Italian proverb 

wisely warns, legal teams should be wary 

of those who have nothing to lose. 

In addition to drawing in new software 

and legal service providers—the annual 

Socha- Gelbmann report states there are 

over 600 companies offering some sort 

of e- discovery services—the allure of 

e- discovery revenues is causing some 

companies to make some bold marketing 

claims. Chief among these claims is the 

promise of an “end-to-end” e- discovery 

technology that, presumably, can handle 

everything from archiving and legal holds 

to redaction. 

The opportunity to streamline e- discovery 

with one vendor or service provider is certainly 

appealing. A recent FTI-funded study 

of in-house counsel reported that “97 percent 

of those surveyed said ‘using fewer service 

providers to do more of the e- discovery process’ 

was one of the more important considerations 

in the selection process, and 79 

percent said the same when selecting a software 

provider.” Ari Kaplan, Ari Kaplan Advisors, 

Advice from Counsel: Best Practices 

on Controlling E- Discovery Costs (Oct. 2009). 

These numbers indicate that inside counsel 

are likely tired of managing multiple contracts, 

and the expense and time required 

to manage a handful of tools and providers. 

But, does one end-to-end e- discovery 

technology currently exist And if not, is 

one even possible given the unique challenges 

of the legal industry, including the 

primary need for defensibility, a complicated 

workflow, and quickly evolving case 

law 

Perhaps more than any other industry, 

the relationship between legal industry

processes and requirements and technological 

features and methodology is complicated. 

Laws and regulations, particularly 

in the area of e- discovery, describe behavior 

that is deemed reasonable or unreasonable 

and prescribe consequences where 

an offender falls on the wrong side of 

the divide. Computer technology is nonjudgmental, 

although it also uses binary 

classification in the form of 1s and 0s. The 

law must be general, because it has to deal 

with the infinite variety of circumstances 

created by human interaction. Accordingly, 

the application of the law to any particular 

circumstance is often the subject of 

widely divergent interpretation. Computers 

do not deal in generalities—they carry 

out instructions literally and predictably in 

response to a given set of facts. 

Accordingly, business enterprises are 

faced with the uncertainty that is inherent 

in e- discovery law. With rare exceptions, 

they do not have the luxury of knowing with 

certainty—in advance—how an authority 

applying and enforcing the law will judge 

them. In response to this uncomfortable 

risk, many are turning to computer technology 

as a risk mitigation tool. Unfortunately, 

eager vendors seeking to prey upon 

the anxiety caused by legal uncertainty 

have created the impression that technology 

promises “solutions” as opposed to 

tools to mitigate risk. 

“Solutions” is an information technology 

term used to refer to a configuration 

of software and/or hardware, the purpose 

of which is to solve a problem. Many technology 

industries, ranging from storage to 

enterprise applications, provide effective 

solutions to meet common business problems. 

However, the use of this term in application 

to legal compliance embodies the 

cavernous disconnect between the compliance 

office and the IT function. The lawyers 

are tasked with responding to a legal 

environment that places heavy demands 

on the way electronic information is managed 

by the enterprise. They turn to IT to 

help solve this problem, and IT naturally 

looks for technical solutions. 

Seeing the opportunity to appeal to both 

audiences, vendors of compliance- related 

technology may make grandiose claims 

about their “solutions” to various laws and 

regulations. Based on many of these claims, 

one might have the distinct impression 

that the problem of achieving legal compliance 

in connection with electronic information 

has been definitively resolved. But 

in e- discovery, where the governing legal 

standard is so often based on “reasonableness,” 

the basis for such claims is hard to 

understand. 

These claims bring to mind the legend 

of the electronic discovery orb (the 

“Orb”). The Orb is a metallic sphere, with 

various buttons and controls on its surface, 

that fits in the palm of the hand. The 

user simply carries the Orb into proximity 

with sources of electronic information, 

whereupon the Orb wirelessly draws in the 

data responsive to the parameters dictated 

into its built-in microphone by the lawyers. 

Its built-in projector then displays the 

documents for the lawyer’s review. After 

the lawyer has reviewed a sample of the 

Orb’s document collection and recorded 

relevance and privilege designations by 

speaking them into the Orb’s microphone, 

the Orb reviews the rest of the document 

without lawyer supervision. The Orb can 

then simply be handed to the requesting 

party as the document production; it will 

allow the requesting party to access only 

those documents deemed relevant and 

non- privileged. 

Of course, the Orb is just a fantasy—and 

it sounds like one. Nonetheless, the claims 

made by some technology vendors sound 

like they are selling something very close 

to the Orb. Unfortunately, some corporate 

legal and IT personnel desperate for an easy 

answer to e- discovery risk and cost may be 

entranced by these siren calls. In particular, 

two examples of enterprise content management 

(ECM) product categories have 

received significant and growing attention 

from businesses seeking to improve compliance 

with electronic preservation and 

discovery obligations: e-mail archiving and 

enterprise search. Fundamentally, e-mail 

archiving tools aim to help retain e-mails 

in a way that optimizes available storage 

resources and facilitates smooth operation 

of the e-mail system. Enterprise search 

tools address the problem of finding particular 

information stored in dispersed and 

disparate formats and locations. 

The phenomenal growth in the market 

for these ECM products has been well 

chronicled by analysts who cover that 

space. While there are a number of factors 

It is only very recently 

that the bench and 

bar have focused on 

understanding how 

electronic search 

engines work. 

that have contributed to this growth, one of 

the most significant drivers in recent years 

has been legal compliance needs, specifically 

e- discovery. This is a noteworthy 

trend because the ECM products benefiting 

from corporate e- discovery compliance 

concerns by and large were not created 

to address e- discovery, a characteristic 

which reveals itself upon thorough investigation. 

While many of the ECM products 

have been modified and updated in various 

ways by various vendors to specifically 

target e- discovery objectives, the products 

are frequently marketed in a way that suggests 

much more robust e- discovery functionality 

than the tools currently provide. 

Indeed, the message from some ECM vendors 

is that they have collapsed the entire 

information management process, from 

day-to-day recordkeeping through production 

of electronically stored information 

(ESI) in litigation, into one box. There 

is no longer a need to look at the Electronic 

Discovery Reference Model (EDRM) breakdown 

of the e- discovery process. Rather, 

just put it all in one big box with one big 

“Easy Button.” 

The reason this matters to people responsible 

for e- discovery compliance is that 

they may be disappointed, or worse, surprised, 

when the ECM product upon which 

they spend a healthy portion of their budget 

for IT or legal, or both, does not do what 

they thought it would do. For example, a 

client who implements one of these solutions 

may be disappointed when it receives 

a subpoena from the Department Justice, 

requiring it to perform a specific search 

of ESI, only to find out that the expensive 

new technology product does not have the 



capability to do the search in the required 

manner. This would likely require the client 

to purchase a second tool to conduct 

the more thorough search. Another possible 

scenario could surprise a lawyer when 

he or she represented to the court that all 

files containing certain search terms have 

been reviewed and later learns, in a deposition 

of the client’s IT staff, that the tool used 

Limitations are not 

necessarily “flaws” in 

the technology, rather 

they reflect the fact that 

the technology was not 

designed for purposes 

of legal compliance. 

to conduct the search does not search .xyz 

files and does not identify and log those 

files it was unable to search. 

E-mail archiving tools were originally 

developed in response to the explosion in 

the volume of e-mail. This growth placed 

increasing demands on the storage capabilities 

of a company’s infrastructure. It 

also negatively impacted the performance 

of the e-mail system, and e-mail 

had become a mission- critical business 

application as to which performance degradation 

could have dire financial consequences. 

So, the energy in developing 

e-mail archiving systems was directed 

towards efficient storage and interaction 

with the live e-mail system. 

In recent years, however, the widening 

interest in e-mail archiving has arisen 

directly from the continuous stream of 

severe punishments meted out by courts 

and regulators to those who failed to preserve 

e-mail that they were under a legal 

obligation to preserve. Fearing spoliation 

sanctions, lawyers and IT personnel have 

looked to e-mail archiving as a “spoliation 

solution”—a means of ensuring that e-mail 

preservation can be handled without relying 

on notoriously unreliable e-mail users, 


who might also happen to be witnesses in 

a case requiring preservation of e-mail. 

The availability of e-mail archiving products 

and the spiraling decline in the cost of 

electronic storage has catalyzed the “save 

everything” approach favored by many 

risk- averse attorneys. While this approach 

may ensure defensibility, it also promises 

hefty costs downstream for processing and 

legal review. 

Similarly, enterprise search tools were 

originally developed as a response to the 

overwhelming expansion of ESI within the 

corporate enterprise. Just as Google and its 

competitors allow web surfers to make use 

of the vast ocean of data tied together as the 

Internet, enterprise search tools help business 

users find internal business data they 

need to do their jobs. Clearly, such tools 

could have broad application to legal compliance, 

identifying potentially relevant 

data for preservation and collection, filtering 

the universe of data to be reviewed by 

attorneys for production, and facilitating 

early case assessment by targeted analysis 

of data. Identifying information as potentially 

relevant, separating the wheat from 

the chaff, is half the battle of electronic discovery. 

A “solution” that can truly search 

disparate sources of data in a manner suitable 

for legal compliance needs is desperately 

needed. 

Indeed, early cases in e- discovery saw 

the searchability of electronic information 

as a major potential advantage over paper 

discovery. It is only very recently that the 

bench and bar have focused on understanding 

how electronic search engines 

work. The notion that significant amounts 

of relevant information may not be captured 

by a particular search tool is important 

enough to have become the subject of 

several recent federal court opinions. 

These recent developments mean that 

the way a party goes about saving and 

searching for ESI is likely to become the 

subject of scrutiny by an opposing party. 

Yet corporate buyers of ECM tools have 

rarely conducted a thorough investigation 

of the details that might impact the defensibility 

of an ESI preservation and search 

before purchasing such a tool. Given that 

the ECM tools being marketed today generally 

have not been litigator- tested and were 

not built with such examination in mind, 

they should be. 

All of this caution about ECM tools 

seeking to sell themselves as ready for e- 

discovery primetime is not meant to create 

despair. There is no question that the two 

ends of the EDRM are converging, and that 

the IT used for business operations information 

management will incorporate more 

and more of the capabilities necessary for 

e- discovery compliance as development 

moves forward. Even now, however, there 

is no shortage of available technology that 

was built specifically to handle the demands 

of e- discovery, and has been battle- tested 

over a period of years of intensive litigation 

and regulatory investigation. While 

deploying such “best of breed” technology 

may not be as attractive as using an Easy 

Button sitting atop one big box that handles 

all corporate information needs, using 

leading technology designed specifically 

for e- discovery should help avoid some of 

the disappointment and surprise attendant 

to believing marketing claims that are too 

good to be true. 

Remember also that apart from preserving 

information and being able to search 

it, an important part of the battle within 

electronic discovery is reviewing, making 

sense of, and acting upon the ESI, however 

it is identified and collected. This process 

is critical not only because it is the step 

that allows legal and compliance teams 

to apply informed judgment to assessing 

the situation, but because it is easily the 

most expensive phase of electronic discovery. 

Tools developed specifically for electronic 

discovery are more likely to provide 

sophisticated features such as concept clustering, 

e-mail threading and near deduplication. 

These purpose- built features can 

have a huge impact on the efficiency of electronic 

discovery as well as the overall cost, 

but they are not typically part of the ECM 

domain. 

ECM tools like e-mail archiving and 

enterprise search can be extremely useful 

tools for facilitating compliance with electronic 

discovery obligations. The danger 

lies in viewing such technologies as “solutions” 

that solve the entire e- discovery 

problem. For reasons rooted in the basic 

differences in approach between law and 

computer technology, it is hard to see how 

any enterprise content management technology 

could “solve” the legal compliance 

E-D Evolution, continued on page 73

Incomplete e-discovery 

could leave you all wet. 

When it’s raining down risk, many e-discovery 

providers leave you exposed. FTI delivers a 

comprehensive e-discovery solution that protects 

you from the complexity of global litigations and 

investigations—and pricing that won’t soak you 

with surprises. 

Be Ready. Be Right. 

ftitechnology.com 

FTI TECHNOLOGY | Be Ready. Be Right. 

© 2010 FTI Consulting, Inc. FTI Technology LLC is a business of FTI Consulting, Inc.

Writers’ Corner 

Your Opponent’s Offending Material 

Dealing with Mudslinging 

By Frank E. Noyes II 

Reading a brief from my opponent usually does not affect 

my blood pressure. Every once in a while, however, 

I face work product that seems to confuse mudslinging 

and personal attacks with aggressive advocacy. Every 

brief criticizes the opposing party or its case in some 

way, but sometimes you get the sense that your opponent 

has crossed a line. Whether through gratuitous criticisms 

unrelated to the issues, or by distorting the procedural 

background or facts to try to make me or my client look 

bad, this work product seems more interested in casting 

aspersions than in winning the case. 

In my view, such tone or tactics have no place in written 

advocacy. My first reaction is to scribble notes furiously 

in the margin, rebutting each offending comment 

with pithy zingers that I can use in my response, often 

with multiple exclamation points. Alas, although cathartic, 

these margin notes are generally useless. Later, however, 

as I dispassionately analyze the most effective 

response on the merits, I must make a tactical decision 

about how to address the offending comments, if at all. 

As a general rule, you are better off disregarding gratuitous 

material that is irrelevant to the matter at issue. 

In general, I think that judges and law clerks focus 

on what they are asked to decide and are too busy to 

remember gratuitous attacks or misstatements later in 

cases. Plus, responding to mudslinging could decrease 

your overall effectiveness. On the other hand, we need 

to remember that, as far as the facts and the conduct of 

the litigation go, a judge only knows what the parties tell 

him or her, so we cannot always afford to let mischaracterizations, 

distortions, or baseless criticisms go unchallenged—ignoring 

them could lend credence to them. A 

court may have the mindset that if one side’s brief incorrectly 

states something, the other side will correct it. So 

while you do not need to reflexively rebut every offending 

comment, on occasion it is important to respond. 

When you decide that you should respond, here are 

some suggestions on how to do it. First, avoid the “tit 

for tat.” If a judge is inclined to simply ignore gratuitous 

rhetoric, rebutting it will only call attention to it. 

And if the other side’s mudslinging does bother a court, 

then the judge probably will not like it when you do it 

n Frank E. Noyes II is of counsel, with Eizen Fineburg & McCarthy PC, in Philadelphia, 

Pennsylvania. He works with the firm’s business group, focusing on business 

counseling and commercial litigation. Mr. Noyes is a member of DRI’s Appellate 

Advocacy, Commercial Litigation and Insurance Law Committees. 

either. Even if you are completely right and the other 

side is completely wrong, it probably won’t come across 

that way to the judge. If you focus on the offending comments, 

you will make yourself look like your opponent, 

which, presumably, is the opposite effect from what you 

intend. It can be very tempting to lead off with a pointby-point 

rebuttal to every misstatement or criticism in 

your opponent’s brief. However, that usually makes for 

a lengthy and ineffective response, not to mention that 

you might sound as if you are whining. 

Second, if you decide to address the offending comments, 

you should still primarily focus on the real case 

issues in your response. Your main objective remains to 

convince the court to view matters your way. 

Organize your response the same way that you would 

if the other side’s submission had been completely inoffensive 

and on point—focusing on the merits and highlighting 

the elements of your argument. Then, if you feel 

that particular comments deserve rebuttal, you can fit 

your rebuttal into your overall strategy, addressing the 

offending comments within the organizational structure 

of your argument on the merits. Present your position 

first, then include your response to the offending 

comments within your rebuttal of your opponent’s other 

arguments. Sometimes a footnote can effectively address 

a point without disrupting the flow of your argument. 

On occasion, when the other side’s brief is systemically 

inaccurate or full of inappropriate comments, you might 

find it worthwhile to include a short, separate section in 

your brief to address the topic generally, for example, 

under the heading “Movant’s Recitation of Facts Is Not 

Reliable.” Even then, as mentioned, you do not need to 

address every single misstatement or attack in the other 

side’s brief. Simply cite a couple of egregious examples so 

that the court understands that it cannot take the other 

side’s assertions at face value. 

Third, always maintain a professional tone. Two easy 

rules: use adjectives minimally and focus your response 

on the work product, not on the lawyer who wrote it or 

on the opposing party. In other words, criticize the mudslinging, 

not the mudslinger. Remember that you are 

representing your client not only through the arguments 

that you present, but also through the way that you present 

them. Address the out-of-bounds comments in a way 

that maintains the good reputation that you work hard 

to maintain. And remember, the best response to mudslinging 

is to focus on the merits—and win. 


Think Globally 

Be Aware, Be Prepared 

The Foreign Corrupt Practices 

Act Goes Global 

By Gwendolyn L. Hassan 

In September 2008, a French citizen and former executive 

of Alcatel was sentenced to 30 months in prison and 

three years of supervised release and required to forfeit 

$261,500 after pleading guilty to two counts of violating 

the United States Foreign Corrupt Practices Act of 1977 

(FCPA). Siemens AG, a German corporation, pled guilty 

in December 2008 to multiple FCPA violations and 

agreed to pay a record fine of $800 million. The United 

States is currently seeking extradition of two citizens of 

the United Kingdom who were indicted for violating the 

FCPA in February 2009. In May 2009, a Danish corporation, 

Novo Nordisk, entered into a deferred prosecution 

agreement related to FCPA violations and agreed to pay 

a $9 million criminal penalty in addition to civil penalties 

and disgorgement of profits in excess of an additional 

$9 million. 

France, Germany, the United Kingdom, Denmark— 

it’s not difficult to spot the trend. Enforcement of the 

FCPA has taken a truly global scope. Given the increasingly 

international nature of business today, companies 

around the globe need to be aware of, and prepared for, 

the FCPA’s expanded jurisdictional reach. 

Prior to 1998, the only parties subject to jurisdiction 

under the FCPA, other than U.S. persons and companies, 

were “issuers.” An issuer is a corporation, domestic 

or foreign, which has issued securities registered in 

the United States, or a corporation that is required to 

file periodic reports with the Securities and Exchange 

Commission (SEC). In the examples above, both Siemens 

and Novo Nordisk are issuers, subject to jurisdiction 

under the FCPA. 

In 1998, however, the FCPA was amended, in part to 

extend its territorial jurisdiction to reach foreign companies 

and nationals regardless of their status as issuers. 

Foreign entities and persons are now subject to the FCPA 

if they take “any act in furtherance” of corrupt payments 

within the territory of the United States. It is important 

to note that the U.S. Department of Justice (DOJ) appears 

to have taken the position that no requirement exists that 

an act use the U.S. mail or other means or instrumentality 

of interstate commerce. See 15 U.S.C. §78dd-3(1), 

(f)(1). The DOJ has taken the additional position that it 

has jurisdiction over foreign entities and persons whenever 

they cause another person, acting as that entity or 

national’s agent, to undertake an act within the territory 

of the United States. See United States Attorneys’ Manual, 

Title 9, Criminal Resource Manual 1018 “Prohibited 

Foreign Corrupt Practices” (November 2000). 

This expanded jurisdiction now effectively subjects 

any foreign company or national that transacts business 

with or for a U.S. company to potential FCPA liability 

should they engage in or facilitate corrupt payments, 

act as a control person for a business that does so, or 

commit a books and records violation by failing to have 

the proper systems and processes in place to adequately 

detect and prevent corrupt payments. With increasing 

frequency, the DOJ has used this additional “reach” to 

establish jurisdiction over companies and persons that 

previously wouldn’t have been covered by the FCPA. 

The case of Christian Sapsizian, a former Alcatel executive, 

alluded to above, is an example of this extended jurisdiction. 

A citizen of France working for Alcatel, which 

was, at the time, a French telecommunications company, 

Sapsizian admitted that between February 2000 and September 

2004 he conspired with others to cause Alcatel to 

wire more than $14 million in disguised “commission” 

payments to a consultant in Costa Rica, which then paid 

$2.5 million in bribes to Costa Rican officials. These 

payments were made to secure a lucrative telecommunications 

contract for Alcatel, which, according to DOJ 

plea documents, was a contract valued at $149 million, 

awarded in 2001. Until late 2006, when it merged with Lucent, 

Alcatel was a French company with American depositary 

receipts traded on the New York Stock Exchange. 

Thus, this French citizen caused a foreign issuer to wire 

money ultimately used to bribe foreign officials—a FCPA 

violation under the 1998 amendment to the act. 

Similarly, two U.K. citizens, Jeffrey Tesler, a London 

n Gwendolyn L. Hassan handles global trade, logistics and import and export compliance 

law as in-house counsel for Navistar, Inc. From the Office of the General 

Counsel in Warrenville, Illinois, she concentrates her practice in complex trade regulation 

matters, including FCPA, U.S. Treasury Office of Foreign Asset Control, U.S. 

Customs and Border Protection, and trade sanction and boycott compliance and 

enforcement, in addition to the structure of intricate import and export strategies in lawyer, and Wojciech Chodan, a former employee of 

international acquisitions and business combinations. Think Globally, continued on page 73 


Defense Ethics and Professionalism 

Beyond Bar Discipline 

Why Conflicts Matter 

By Mark J. Fucile 

Lawyers have long had a duty to follow the Rules of 

Professional Conduct. Moreover, failing to follow them 

has for a long time involved disciplinary consequences. 

Without diminishing their role as an ethical compass 

and a regulatory code, the professional rules—especially 

those relating to conflicts—have also increasingly 

become a critical element in the substantive law of legal 

malpractice, lawyer breach of fiduciary duty, fee forfeiture, 

disqualification, and lawyer-related consumer 

protection act claims. In short, conflicts matter today in 

a very practical way. 

In this column, we’ll consider illustrative cases highlighting 

the practical importance of the conflict rules 

beyond the disciplinary setting. In an era when lawyers 

are being sued more often and in a wider range of practice 

settings than in years past, these cases provide cautionary 

tales of the potential financial consequences to 

law firms. 

of loyalty. As Comment 1 to ABA Model Rule 1.7 puts it, 

“Loyalty and independent judgment are essential elements 

in the lawyer’s relationship to a client.” Violating 

the professional rules on conflicts, therefore, translates 

quite directly into a breach of the fiduciary duty of loyalty. 

A current or former client pursuing a claim against 

a lawyer or law firm will still need to prove causation and 

damages. The specter of a conflict, however, will provide 

a skilled opponent with a powerful tool to use with 

a jury. Although juries might have difficulty grasping 

the nuances of complex securities or tax law, they readily 

understand the fundamental duty of loyalty. Indeed, 

the sweep of breach of fiduciary duty claims can be quite 

broad, extending to both current clients and former clients. 

See, e.g., Eriks v. Denver, 824 P.2d 1207 (Wash. 1992) 

(current clients); and see, e.g., Milbank Tweed Hadley 

& McCloy v. Boon, 13 F.3d 537 (2d Cir. 1994) (former 

clients). 

Legal Malpractice 

The Preamble to the ABA’s influential Model Rules of 

Professional Conduct states that a violation of a rule 

should not, in and of itself, give rise to a corresponding 

civil claim against the lawyer involved. At the same time, 

conflicts can have two important roles in a malpractice 

case. The first is legal: a conflict can be evidence that a 

lawyer negligently breached a standard of care. The second 

is strategic: a conflict opens the door to arguing to 

a jury that harm suffered by a client was motivated by a 

lawyer’s self-interest rather than the result of simple negligence. 

This argument can inject a potentially explosive 

element into a legal malpractice jury trial, as well as 

the potential for punitive damages. See, e.g., Cummings 

v. Sea Lion Corp., 924 P.2d 1011 (Alaska 1996) (upholding 

a punitive damage award in a legal malpractice case 

laced with conflicts). 

Breach of Fiduciary Duty 

The ABA Model Rules also note that the professional 

rules on conflicts reflect the underlying fiduciary duty 

n Mark J. Fucile, of Fucile & Reising LLP, Portland, Oregon, focuses on professional 

responsibility and product liability defense throughout the Northwest. He is a past 

chair of the Washington State Bar Rules of Professional Conduct Committee, a past 

member of the Oregon State Bar’s Legal Ethics Committee and a current member Consumer Protection Act Claims 

of the ABA Center for Professional Responsibility. He is also a member of the IADC Most states have adopted consumer protection acts, most 

and DRI’s Product Liability and Lawyers’ Professionalism and Ethics Committees. Ethics, continued on page 75 


Fee Forfeiture 

A lawyer’s breach of fiduciary duty can result in forfeiture 

of all or a part of that lawyer’s fees. States vary in their 

approach on whether a lawyer’s breach of fiduciary duty 

will render all fees unrecoverable or whether a lawyer 

may still be entitled to limited, quantum meriut recovery, 

even if the lawyer’s fee agreement was rendered void 

by virtue of a breach. Fee forfeiture, however, can be used 

as both a sword to seek the return of fees already paid 

and as a shield to avoid collection efforts. See, e.g., In re 

Jore Corp., 298 B.R. 703 (Bkrtcy. D. Mont. 2003) (illustrating 

both). 

Disqualification 

Although court decisions provide the procedural law of 

disqualification, the professional rules effectively supply 

the substantive law. Courts primarily consider the 

rules governing current client conflicts and former client 

conflicts in determining whether a lawyer or law firm 

should be disqualified. See, e.g., Image Technical Service, 

Inc. v. Eastman Kodak Co., 136 F.3d 1354 (9th Cir. 1998) 

(current client conflicts); and see, e.g., SuperGuide Corp. 

v. DirecTV, 141 F. Supp. 2d 616 (W.D.N.C. 2001) (former 

client conflicts).

E-D Evolution, from page 68 

challenge. The disparate sources of electronic 

information, the near impossibility 

of eradicating localized instances of it, 

and the flexible legal standards that apply 

reasonableness differently depending on 

particular factual circumstances, indicate 

that technology will have to fit within an 

ecosystem of policies and procedures, as 

well as corporate culture suited to compliance. 

There is no “set it and forget it” solution 

to the law. 

Perfection is too much to demand where 

reasonableness is expected, but it is important 

while appreciating the wonders of new 

ECM technology in assisting with compliance 

needs also to recognize its limitations. 

The failure to ferret out these limitations 

and address them as part of a compliance 

plan can have fatal consequences for compliance. 

These limitations are not necessarily 

“flaws” in the technology, rather 

they reflect the fact that the technology was 

not designed for purposes of legal compliance, 

but instead to answer more operational 

needs. 

Considering this evolution, it is not surprising 

that enterprise content management 

tools do not “solve” difficult legal 

challenges. Historically, e-mail archiving 

products have been much better at saving 

information than at retrieving and presenting 

that information in a manner that 

facilitates the need to quickly identify and 

produce documents relevant to a request. 

Enterprise search tools have developed as 

less than transparent in identifying limits 

to their ability to search and keeping 

precise records of how these limits applied 

to any particular search. In today’s world 

where courts ask for certifications about 

completeness of discovery efforts, this is 

not acceptable. Similarly, in many cases 

the way that such tools retrieve and present 

data, and the functionality they provide 

to the user in reviewing results, reveals 

that they were not built with the idea of 

doing a legal document review for production 

purposes. 

The trend over the past few years has 

been the attempted convergence of enterprise 

content management technology 

and litigation technology built expressly 

to answer the rigorous requirements of 

legal challenges. Enterprise content management 

vendors have observed the explosive 

growth of the legal technology market 

and have been working to adapt their products 

for presentation to the consumer as 

electronic discovery “solutions.” Similarly, 

electronic discovery technology providers 

have been working to bring their 

products “behind the firewall” to integrate 

more seamlessly with the everyday business 

operation technologies that manage 

content for the enterprise. The two have not 

met in holy matrimony as of yet, however. 

For clients looking for “solutions” to legal 

compliance requirements, they need to be 

able to identify clearly where the divide lies 

and make sure their compliance programs 

address the gap. 

Think Globally, from page 71 

the U.K. subsidiary of U.S.-based Kellogg 

Brown & Root, were individually charged 

with 10 counts of violating the FCPA. Allegedly, 

a joint venture that included Kellogg 

Brown & Root, also separately charged 

under the FCPA, which was controlled by 

Tesler, paid roughly $132 million in bribes 

to Nigerian government officials. Chodan 

allegedly participated in the meetings and 

wired money from Kellogg Brown & Rootcontrolled 

accounts to a Japanese trading 

company to be used in the bribes. The 

indictment seeks forfeiture of the $132 

million and prison sentences of 55 years. 

The claim of jurisdiction stems from Kellogg 

Brown & Root’s bank accounts as 

the source of the funds allegedly wired 

to the Japanese trading company to be 

used by these U.K. citizens to bribe Nigerian 

government officials. These citizens 

of the United Kingdom “caused an act to be 

done,” the wiring of money, within the territory 

of the United States, resulting in an 

FCPA violation. 

Although these examples involve wired 

money, they are only two of an increasing 

number of similar cases asserting jurisdiction 

over foreign companies and nationals. 

It is clear the DOJ is taking an expansive 

view of both the phrase “any act in 

furtherance” and “territory of the United 

States” and has its sights set on truly global 

enforcement of the FCPA, no matter where 

corruption occurs or by whom it is committed. 

On The Record, from page 1 

of potential jurors and on all fields where 

disputes are resolved; 

4. Economics: to assist members in dealing 

with the economic realities of the 

defense law practice, including the competitive 

legal marketplace; 

5. Professionalism and Service: to 

urge members to practice ethically and 

responsibly, keeping in mind the lawyer’s 

responsibilities that go beyond the 

interests of the client to the good of 

American society as a whole. 

In the months to come, our DRI meetings 

and programs will be guided, at least in 

part, by these reflections, and on the results 

of our look at the paradox of maintaining 

core values in a time of great change. 

Sign up today! 

Visit www.dri.org or call 

312.795.1101 to register or 

for more information. 

BUSINESS LITIGATION 

AND INTELLECTUAL 

PROPERTY SEMINAR— 

WHAT SMART COMPANIES 

AND THEIR LAWYERS NEED TO 

KNOW IN THE NEXT DECADE 

APRIL 15–16, 2010 

HILTON NEW YORK 

NEW YORK, NEW YORK 


that “all individuals with a history of [such 

psychiatric conditions] undergo additional 

medical and psychiatric evaluation to further 

assess functional ability before being 

considered qualified to drive a CMV.” Id. at 

6. More attractive to the plaintiff’s bar will 

be the MEP’s recommendation that persons 

currently being treated for such conditions 

with benzodiazepines “or similar 

drugs which act on benzodiazepine receptors… 

be immediately prohibited from driving 

a CMV.” Id. at 7. Benzodiazepines are 

classified as depressants, and they are used 

to treat anxiety and other psychiatric conditions; 

commonly prescribed benzodi- 

E-Trucking, from page 53 

can be essential to preserving the potential 

electronic evidence. 

However, identifying the existence of an 

ECM is only half the battle, as its data is not 

stored in an identifiable form on the actual 

onboard computer that you can produce, 

but must be downloaded to a separate computer 

or other device with appropriate software 

so that the data can be organized into 

a recognizable form. Therefore, when you 

know that an ECM exists, it is necessary to 

identify an individual within the trucking 

company, or retain a third- party vendor, 

such as an accident reconstruction consultant 

or e- discovery consultant, to download 

the information, organize it into a readable 

form and have the information preserved 

for production during litigation. 

Other Possible Sources of 

Electronic Information 

When identifying a trucking company’s 

electronic information, attorneys should 

make sure to identify all electronic computer 

systems that a company may use. 

These systems may include networks, storage 

systems, backup media, business computers 

and personal computers of drivers 

and other employees. Attorneys should also 

consider external media, such as “flash” 

drives, CDs and mobile devices. 

Counsel for a trucking company should 

also be acutely aware of the various software 

applications that a company may use 

that produce electronic information. One 

common service offered by many trucking 

companies today includes electronic data 

interchange (EDI), which allows a trucking 

company customer to transmit shipping and 

load information electronically, and thereafter, 

monitor the status of the shipping. All 

of this EDI information is, of course, maintained 

on a trucking company’s computer 

servers and may be relevant to discovery. 

Electronically stored information is not 

limited only to a company’s internal storage 

devices either, but also to various external 

devices. External storage systems may 

include third- party companies that retain, 

transfer and destroy data, or sources from 

which it can become difficult to obtain 

information, such as a driver’s or other 

employee’s PDA, a GPS navigation device, 

MP3 player or other device. All of these 

devices store electronic information, some 

onboard and some in remote locations, 

and you should consider them when determining 

what electronic information may 

exist. Obtaining electronic information 

and tracking a company’s work product 

from these latter devices can be very difficult, 

and may even be considered “inaccessible,” 

if a company has no means to 

track and preserve information not kept 

as part of the ordinary course of business. 

However, to avoid spoliation and information 

destruction consequences, a company 

and attorney may be required to preserve 

information from these devices, should 

they be deemed to have potentially relevant 

information. The prevalence of these 

small, readily available devices, such as 

cell phones, PDA’s and personal GPS navigation 

devices, has made retrieving electronic 

information during litigation from 

even the smallest trucking company a common 

reality. 

Conclusion 

Given federal and state rules related to electronic 

discovery and case precedent interpreting 

them that emerges every day, it is 

important for both lawyers and trucking 

companies to proactively identify and preserve 

potentially relevant electronic information 

as early on as possible in litigation. 

E- discovery rules and related law can affect 

the largest carriers to the smallest companies. 

However, communicating with 

appropriate individuals from the first possible 

moment can have an impact. While 

e- discovery and its ins and outs can seem 

daunting for the average trucking defense 

litigator, the tools necessary and essential 

to understanding what is needed is not 

difficult to attain. The key is to identify a 

company’s technology from the outset and 

then contact sources to retain and retrieve 

information. 

The technology and safety features used 

in today’s tractors as well as those of the 

future will continue to move a once paperfilled 

industry to store information with 

more frequency in electronic format. The 

key to effectively preserving relevant electronic 

information and competently representing 

a trucking company, now and in the 

future, is and will be open and honest communication 

between a lawyer and trucking 

company, as early and often as possible, to 

learn about the company’s operations and 

technology, to avoid unnecessary adverse 

instructions, penalties and sanctions. 

Medical Regs, from page 40 

cy’s determination of fitness for a driver’s 

license [despite the driver’s alleged prior 

medical conditions].” U.S. Xpress, Inc., 

2008 U.S. Dist. LEXIS 57940, at *6. Defense 

counsel should certainly consider this and 

other similar arguments in Daubert challenges 

to plaintiffs’ D.O.T. and medical 

experts. 

Psychiatric Disorders and Litigation 

Another emerging FMCSA medical issue 

concerns psychiatric disorders, medicines 

prescribed to treat them and driver qualification. 

In its July 1, 2009, meeting, the 


MRB considered five categories of psychiatric 

disorders—psychotic disorders, 

bipolarism, major depression, obsessivecompulsive 

disorder, and antisocialism 

disorder. Jessica R. Williams, Manila Consulting 

Group, Inc., Presentation at Federal 


Medical Review Board Public Meeting, 

at 4 (July 1, 2009), http://www.mrb.fmcsa. 

dot.gov/07012009_meeting_present.htm (follow 

“Expert Panel Opinions: Psychiatric Disorders” 

hyperlink). While the Psychiatric 

Disorders MEP did not ultimately recommend 

making these disorders disqualifying 

conditions, the panel did recommend

azepines include Xanax, Librium, Valium 

and Ativan. Based on this strong language, 

allegations for negligent hiring or retention 

are a sure bet should a driver’s medical history 

involve benzodiazepines. 

One recent accident case in Idaho, the 

Davis v. Nevarez & Swift Transp. Co., concerned 

the qualifications of a commercial 

truck driver who had been previously diagnosed 

and treated for a psychiatric disorder. 

Davis v. Nevarez & Swift Transp. Co., No. 

3:07-CV-00427-EJL-LMB, 2009 U.S. Dist. 

LEXIS 45248 (D. Idaho May 29, 2009). Specifically, 

the driver had disclosed diagnoses 

of schizophrenia and bipolarism and that he 

took four psychotropic prescriptions related 

to the diagnoses. In qualifying the driver, 

the carrier followed not only the letter of 

the FMCSA medical regulations, but also its 

non- mandatory recommendation that persons 

with such disorders undergo further 

medical evaluation. See Question 1 of the 

DOT Interpretations of 49 C.F.R. §391.41(b) 

(9). Nonetheless, the driver’s qualifications 

became a principal issue in the case. 

The carrier challenged the plaintiff’s 

negligent hiring claims by arguing that it 

had not violated any specifically applicable 

medical regulation. Davis, 2009 U.S. Dist. 

LEXIS 45248, at * 22–26. The court rejected 

this argument, however, relying instead on 

industry trends and standards of care: 

The Court disagrees with [the carrier’s] 

basic legal contention that because there 

were no regulations or statutes specifically 

prohibiting hiring [the driver], that 

an allegation for or an award of punitive 

damages may not be allowed. The issue 

in this case is the standard of care exercised, 

and based on the record [the carrier] 

could fall so below the industry 

standard of care in an area not dictated 

by a specific rule so as to constitute gross 

negligence and outrageous conduct. 

Id. at *25. 

In sum, simply following existing law 

was not enough to protect the carrier in this 

federal court. 

Conclusion 

Rulings similar to Davis v. Nevarez make 

it more important than ever for motor carrier 

companies and defense counsel alike 

to stay on top of emerging medical issues. 

Simply following existing law alone may 

not protect carriers from negligent hiring 

or punitive damages claims. One way 

to keep abreast of emerging issues is to 

monitor the medical issues identified as 

important by the FMCSA and the varying 

recommendations for standards and guidelines 

that may effect driver fitness requirements. 

Preparedness is the key. 

E-Discovery Rules, from page 60 

sult The Sedona Conference publications 

pertaining to e- discovery and additional 

resources made available on the websites 

of courts and other organizations that provide 

educational information concerning 

e- discovery. Id. 

Further, lawyers need to understand 

their clients’ technologies and capabilities 

with respect to discovery of ESI. Indeed, 

effectively advocating e- discovery positions 

in litigation requires more than just 

knowledge of the rule language; it also 

requires a full understanding of a company’s 

systems, capabilities, limitations, 

and options. Moreover, maximizing efficiency 

and reducing costs requires a tireless 

search for the most appropriate emerging 

technology and approaches to fit a particular 

company. Recognizing the high costs 

of e- discovery and the return on investment 

available, many companies have 

retained separate e- discovery counsel to 

better ensure consistency and efficiency in 

their litigation. 

Conclusion 

It comes as no surprise that in an era where 

information is increasingly stored in electronic 

form, e- discovery costs continue to 

rise. Reform efforts promise to ease these 

burdens and bring us, hopefully, closer to 

the “just, speedy, and inexpensive” determination 

of every action that the Federal 

Rules of Civil Procedure have always required. 

See Fed. R. Civ. P. 1. Getting from 

here to there will require a coordinated effort 

by many stakeholders, but those initiatives 

are underway. In the meantime, taking 

the time to develop and actually implement 

defensible information management practices 

aimed at and applied to ESI pays dividends. 

Similarly, in the face of litigation, 

ensuring consistency and maximizing efficiency 

can be best achieved through coordinated 

efforts that leverage emerging 

technologies. By employing these measures, 

e- discovery costs can be more effectively reduced 

and parties and their counsel will be 

free to refocus their efforts and resources on 

litigating the merits of the case. 

Ethics, from page 72 

of which make unlawful a variety of deceptive 

practices in consumer trade or commerce. 

Some provide both attorney fees 

and treble damages to a prevailing claimant. 

Many state courts have held that legal 

services are not subject to consumer protection 

acts, but a distinct minority have 

held otherwise, while still others have not 

yet considered the question. The Pennsylvania 

Supreme Court’s decision in Beyers 

v. Richmond, 937 A.2d 1082 (Pa. 2007), 

does an excellent job of summarizing these 

varying results around the country. Most 

of the states that allow consumer protection 

act claims against lawyers limit these 

claims to the business aspects of law practice—including 

the acquisition of clients 

and billing for services. These states, in 

turn, generally allow consumer protection 

act claims to go forward against lawyers 

when a client—current or former—contends 

that the lawyer acted deceptively, 

therefore, violating the state statute, by 

failing to disclose conflicts to gain the client’s 

work. 

Conclusion 

Conflicts are no longer the sole province 

of bar discipline. The professional rules 

on conflicts effectively form a critical element 

of the substantive law for lawyer civil 

liability on a spectrum ranging from legal 

malpractice to fee forfeiture. Or, put simply, 

conflicts today matter in very practical 

ways. 


Advocates and New Members 

Each month, DRI welcomes new members from the United States and Canada and abroad. Some of these new 

members have been recommended by current members actively involved in advancing goals shared by DRI. Any 

individual who recommends a new member is recognized as an “Advocate” for DRI. 

advocates 

David S. Anderson, 

Bloomfield Hills, MI 

Ann-Martha Andrews, 

Phoenix, AZ 

O. Daniel Ansa, Philadelphia, PA 

Linda A. Ash, Cincinnati, OH 

Anthony M. Campo, 

Boston, MA 

Francisco J. Colon-Pagan, 

Sr., San Juan, PR 

Thomas C. Crosby, 

Oakland, CA 

Patrick W. Franklin, 

Birmingham, AL 

Neil A. Goldberg, Buffalo, NY 

Kevin E. Jakab, 

Jacksonville, FL 

Robert O. Jester, 

Kansas City, MO 

Gregory M. Lederer, 

Cedar Rapids, IA 

James L. McCrystal, Jr., 

Cleveland, OH 

Lisa Moran McMurdo, 

Richmond, VA 

Terelle A. Mock, Topeka, KS 

Michael R. Nelson, 

New York, PA 

Mary Pawelek, Austin, TX 

Joseph M. Price, 

Minneapolis, MN 

Caroline T. Pryor, Daphne, AL 

Amy L. Rothman, 

Charleston, WV 

Bernard Sebastian Vallejos, 

Huntington, WV 

Thomas J. Walsh, Albany, NY 

James T. Williams, 

Chattanooga, TN 

Frank C. Woodside III, 

Cincinnati, OH 

Mark Worischeck, Phoenix, AZ 

Anthony R. Zelle, Boston, MA 

New Members 

Alabama 

Robert A. Arnwine, Jr., 

Birmingham 

Jeremy S. Gaddy, Birmingham 

James W. Gibson, Birmingham 

John T. Richie, Birmingham 

Charles Zackery Moore, 

Daphne 

James E. Beck III, Montgomery 

Arizona 

Nicholas Aaron Bender, 

Phoenix 

Brandi Blair, Phoenix 

Amanda S. Chua, Phoenix 

Scott Day Freeman, Phoenix 

Kristina N. Holmstrom, 

Phoenix 

Brian A. Howie, Phoenix 

Daniel Maldonado, Phoenix 

Byron Sarhangian, Phoenix 

California 

Mark Dawson, Danville 

David J. Frankenberger, Jr., 

Fresno 

Douglas Smith, Irvine 

Thomas T. Chan, Los Angeles 

Jean A. Hobart, Los Angeles 

Kenneth M. Jones, 

Los Angeles 

Peter E. Masaitis, Los Angeles 

Richard C. Moreno, 

Los Angeles 

Marisa R. Chaves, Oakland 

Hyon Kientzy, Redwood City 

Charles F. Peterson, 

Rolling Hills 

Glenn M. Holley, Sacramento 

Debra L. Samuels, 

Sacramento 

Tiza Serrano-Thompson, 

Sacramento 

Alison Crane, San Francisco 

Mark R. Mittelman, 

Walnut Creek 

Colorado 

Jonathan M. Abramson, 

Denver 

Amber Ju, Denver 

Mackenzie A. Morgan, Denver 

Brian E. Widmann, Denver 

District of Columbia 

Kathy Bailey, Washington 

Florida 

Katie E. Houlihan, 

Fort Lauderdale 

Mark A. Kirsch, 

Fort Lauderdale 

Kerry Cooper Collins, 

Jacksonville 

Amanda O’Dell, Lake Mary 

Kathryn Ann Johnson, Orlando 

Terra Danielle Guarascio, 

Saint Petersburg 

John C. Basquill, Tampa 

Kimberly Potter, Tampa 

Fay Ryan, Tampa 

David J. Salmon, Tampa 

Benjamin L. Bedard, 

West Palm Beach 

Jennifer K. Thomas, 

West Palm Beach 

Georgia 

Jennifer Guerra, Atlanta 

Raymond J. Kurey, Atlanta 

Idaho 

Nathan R. Starnes, Boise 

Illinois 

Ryan K. Harding, Chicago 

E. King Poor, Chicago 

Christopher Slick, Chicago 

David W. Lewarchik, Itasca 

Marc F. Benjoya, Libertyville 

Robert Maxwell Bennett, 

Peoria 

Stephen J. Butler, Woodstock 

Indiana 

Karen L. Withers, Indianapolis 

Iowa 

Brian C. Lee, Cedar Rapids 

Mark A. Schultheis, 

Des Moines 

Kansas 

Sarah E. Warner, Lawrence 

James W. Clark, Topeka 

Vincent M. Cox, Topeka 

Jennifer H. Sherber, Topeka 

Maine 

Jeffrey D. Russell, Portland 

Maryland 

Katrina J. Dennis, Baltimore 

Irvin D. Drummond, Baltimore 

Robin D. Korte, Towson 

Massachusetts 

Peter L. Bosse, Boston 

Brian M. Cullen, Boston 

Michael P. Johnson, Boston 

Suzanne Young, Boston 

Michigan 

Russell William Porritt II, 

Bloomfield Hills 

Eugene Hamlin, Chesterfield 

Minnesota 

Michelle Carter Seurer, 

Minneapolis 

Jennifer Y. Dukart, Minneapolis 

Amy Kaldor, Saint Paul 

Mississippi 

Chynee A. Bailey, Ridgeland 

Missouri 

Jasen S. Matyas, Columbia 

James H. Ensz, Kansas City 

Jason Zager, Kansas City 

Carolyn J. Geoghegan, 

Saint Louis 

Andrew D. Ryan, Saint Louis 

Joshua Stegeman, Saint Louis 

Nancy R. Vidal, Saint Louis 

Jay M. Dade, Springfield 

Elijah Jacob Lancaster Haahr, 

Springfield 

Adam P. Pihana, Springfield 

Nevada 

Kevin A. Brown, Las Vegas 

Nikkya Williams, Las Vegas 

New Jersey 

Brian R. Masterson, 

East Hanover 

Gregory S. Pennington, 

Holmdel 

Kevin MacGillivray, Morristown 

New York 

George B. Burke II, Albany 

Colleen M. Murphy, Buffalo 

Randolph C. Oppenheimer, 

Buffalo 

Keri L. Arnold, New York 

Christine A. Bernstock, 

New York 

David M. Fish, New York 

Grace Kurdian, New York 

Jason Michael Kurtz, 

New York 

Stewart G. Milch, New York 

Margaret M. Murphy, 

New York 

Jodie Gross Paris, New York 

William J. Croutier, Jr., 

Syosset 

Richard C. Koehler, Syosset 

Patrick D. Geraghty, 

White Plains 

North Carolina 

Mia Linquist, Charlotte 

Rebecca L. Zoller, Charlotte 

Elizabeth S. Desmond, Raleigh 

Robert E. Desmond, Raleigh 

Kristen E. Janicek, Raleigh 

Ohio 

Eliza A. Rechul-Stone, 

Cincinnati 

Michael C. Brink, Cleveland 

Elizabeth M. Norton, 

Columbus 

Kevin P. Braig, Dayton 

Timothy D. Hoffman, Dayton 

Heather L. Allred, Toledo 

Oklahoma 

Eric A. Jacocks, 

Oklahoma City 

Oregon 

Leslie A. Edenhofer, Portland 

Peter D. Hawkes, Portland 

Alison R. Laird, Portland 

Pennsylvania 

Bryan M. Roberts, Philadelphia 

Hyung P. Steele, Philadelphia 

Puerto Rico 

Jose G. Barea Fernandez, 

San Juan 

Javier A. Rivera-Vaquer, 

San Juan 

South Dakota 

Kathryn Ford, Sioux Falls 

Tennessee 

Stephanie Barnes, 

Chattanooga 

Texas 

Jason H. Casell, Austin 

Brian M. Stork, Dallas 

Diane M. Sweezer-Davis, 

Houston 

Walter F. Williams III, Houston 

Virginia 

Mary Barrick, Charlottesville 

Wesley D. Allen, Fairfax 

Alexander J. Conn, Fairfax 

Nicholas Lawrence, Fairfax 

Dana L. Tubb, Fairfax 

Brian C. Wilberg, Fairfax 

Jana P. Roemmich, Richmond 

West Virginia 

David A. Stackpole, 

Barboursville 

Greg Foster, Charleston 

Briana Marino, Charleston 

Canada 

British Columbia 

Jason McDaniel, 

North Vancouver 

Michael D. Parrish, Vancouver 

Ontario 

Jessica Bolla, Toronto 


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visited www.dri.org… 

These visitors were searching… 

Were they searching for a lawyer in your area 

Were they searching for you 

Isn’t it time that you raised your profile with DRI 

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To access your profile: 

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M E M B E R

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