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TORT REPORT: Avoiding spoliation pitfalls in trucking litigation

Ryan Wiesner is an associate attorney at McCoy Leavitt Laskey LLC. He defends businesses, insurance companies and individuals against catastrophic injury and wrongful death claims involving fire and explosion, trucking loss, products liability, and construction defects. He also handles litigation involving commercial disputes, professional malpractice, and financial fraud/theft. Ryan is admitted in Wisconsin and Illinois, but has defended cases nationwide.

Ryan Wiesner is an associate attorney at McCoy Leavitt Laskey LLC. He defends businesses, insurance companies and individuals against catastrophic injury and wrongful death claims involving fire and explosion, trucking loss, products liability, and construction defects. He also handles litigation involving commercial disputes, professional malpractice, and financial fraud/theft. Ryan is admitted in Wisconsin and Illinois, but has defended cases nationwide.

Attorneys defending insurers and motor carriers for losses resulting from commercial trucking accidents should be aware of evidence spoliation issues specific to that field.

While trucking accident cases include physical evidence, often the most important evidence is motor carrier and third-party records. To actively avoid spoliation, defense counsel should communicate with clients to prevent that danger in litigation. This includes instructing motor carrier clients to create and implement retention policies well in advance of litigation.

Spoliation is the intentional, or sometimes negligent destruction, alteration, or concealment of evidence. Spoliation also includes the failure to preserve evidence for an interested party’s inspection or use in litigation. Simply put, a party spoils evidence when it prevents an opposing party from obtaining or using it.

Courts allow several different remedies for spoliation. While some states allow for a separate cause of action, Wisconsin does not recognize this drastic remedy. Instead, Wisconsin courts may award sanctions or costs against the offending party, strike pleadings, or present a negative inference to the jury. The latter is a serious hurdle to overcome.

In this situation, the court will instruct the jury to assume that destroyed/concealed evidence was unfavorable to the guilty party, even if it actually was not. For example, in a trucking accident action, if a motor carrier destroyed/failed to retain vehicle maintenance records, the court can instruct the jury that it is allowed to assume that the vehicle was not properly maintained even if it was. Ultimately, a negative inference could be the difference between obtaining a defense verdict and a jury hitting your client with a large judgment.

Defense counsel should be well versed in investigating trucking losses to avoid spoliation issues, including the accident scene and involved vehicle. The preservation of physical evidence is obviously important. This means providing notice of inspections or testing in advance, and allowing interested parties the opportunity to participate. A simple rule to follow is never perform destructive testing without first notifying interested parties.

You may also need to store vehicles, trailers or cargo for extended periods of time, which can result in excessive storage costs and/or the motor carrier’s loss of use of its vehicle. These costs, though, are mild compared to the potential consequences of a successful spoliation claim against your client.

Motor carrier records are often the most important evidence in trucking accident cases. Examples of motor carrier records are hours-of-service records, vehicle maintenance records, logbooks, cargo information, driver qualification information, or trip sheets. These records are important for proving that motor carriers and their drivers complied with complex state and federal regulations governing the commercial trucking industry.

Defense counsel should contact motor carrier clients soon after a loss to ensure records are maintained. In fact, good defense counsel should have instructed motor carrier clients to create and implement retention policies well in advance of litigation. These policies should be expressly communicated to all employees who have access to records. Courts have been known to consider retention policies when considering spoliation claims, so it is important to document your policies.

Defense counsel should also contact third parties that may have relevant records. It is common for motor carriers to hire independent companies to repair and maintain their fleets. These independent companies keep detailed maintenance records that can be vital to defending your case; so make sure they retain them. While you may not be responsible for a third party’s failure to retain records it is always a good idea to protect yourself and your client given the high exposure involved in trucking litigation.

Trucking litigation is complex. Make sure you don’t needlessly sabotage your defense by destroying or failing to retain evidence. Always make sure to notify interested parties of any inspections or testing. And make sure to contact your client immediately to confirm it retains the proper records. Better yet, communicate the importance of retention policies well in advance of litigation.

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