Opinion: ‘Spoliation of Evidence’ in Accident Litigation
By Chad Levanetz
Attorney
Metzler, Timm, Treleven, Pahl, Beck S.C.
This Opinion piece appears in the Feb. 22 print edition of Transport Topics. Click here to subscribe today.
For any trucking company that becomes the target of a personal injury action, “spoliation of evidence” may become a hidden danger that a defendant will need to avoid to be successful.
“Spoliation” is defined as the intentional destruction, mutilation, alteration or concealment of evidence. However, successful claims for spoliation have occurred based merely upon a party’s accidental failure to preserve property or evidence for another party’s inspection and/or use in pending or reasonably foreseeable litigation.
As trucking is one of the most heavily regulated industries, spoliation of evidence is common in actions against fleets. In the most extreme examples, certain states have allowed separate tort claims against trucking companies that have engaged in spoliation of evidence. Such a claim for spoliation would stand alone from the underlying claims of the action.
Even in states that may not allow a separate cause of action for spoliation of evidence, it is an important consideration. If spoliation can be established, a number of remedies may be used by the court. For instance, a court can assess costs or grant attorneys’ fees. Such remedies are flexibly applied by the trial courts and, in egregious situations, can validate dismissal of the action or entry of judgment against the party that caused, or allowed for, the destruction of the evidence.
Apart from these examples, and oftentimes more detrimental to a defendant’s case than the other pretrial discovery sanctions, a court may permit the jury to draw an inference that the intentionally destroyed document would have provided evidence that was unfavorable to the party that destroyed it. For example, in a personal-injury truck accident case where a fleet has destroyed a driver’s hours-of-service logbook, the court could instruct the jury that it has the ability to assume the destroyed logbook contained information that indicated the driver had been operating beyond the mandated hours. Such a determination may occur whether or not the driver actually violated the hours-of-service standard.
Similar decisions could occur based upon the destruction of maintenance records, trip sheets or electronic data used by trucking companies to maintain information on certain shipments. After an action is filed against a trucking company, counsel will undoubtedly serve the company with discovery, including interrogatories and requests for the production of documents. A response to this discovery will be necessary unless the documentation and/or information requested are privileged. The trucking company then will be compelled to provide the requested information. If the documents were not produced because the company no longer maintains possession, there is likelihood that spoliation will be alleged.
While spoliation can create obstacles in truck accident litigation, certain steps may be taken to alleviate, or eliminate, the risks associated with spoliation. Trucking companies should implement and maintain policies addressing the retention of documents and other information. This policy should be distributed and made known to all company employees. When examining claims or accusations of spoliation, courts often will consider whether the company had a policy in place and whether deviations occurred regarding that policy. It is important that all of the individuals through the chain of command appreciate the importance of maintaining these records.
Beyond the importance of implementing sound policy on records maintenance, any third party who may have information or documentation relating to the truck or the incident involved should be contacted immediately to ensure that the organization or individual does not destroy relevant information. Commonly, independent mechanics will be retained by trucking companies to repair and provide maintenance to a company’s vehicles. While the trucking company undoubtedly will maintain records on the repairs, counsel may contend that those records provide only a portion of the available information. Although they are not a complete safeguard for accusations regarding spoliation, employing these basic strategies will go a long way in allowing defense counsel and the trucking company to successfully defend against a personal injury lawsuit against the trucking company.
Metzler, Timm, Treleven, Pahl, Beck S.C. of Green Bay, Wis., is a business law firm whose expertise includes commercial litigation and banking, commercial transactions and real estate.
