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Keeping records

Jun 1, 2010 12:00 PM, By Rick Weber

Dealing with the impact of CSA 2010 will require careful hiring, adherence to a good data retention program

Keeping records continued...

The regulations on record retention: HOS records, six months; maintenance records, one year (six months after selling a vehicle); drug and alcohol testing — clean test, one year, dirty test five years; driver qualification files, three years; accident register, one year after the accident.

“Simply following the FMCSR on record retention is rolling the dice,” he said. “The general rule is that litigants have a duty to preserve documents that may be relevant to potential future litigation. You should preserve when you have notice that evidence is relevant or when a party should have known that the evidence may be relevant in future litigation. The law requires more than following the regulations when litigation is reasonably anticipated.”

He said spoliation is defined as “the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” He said an example would be logs that would have shown HOS violations.

In Darling vs JB Expedited Services (2006), there was a fatality accident on February 12, 2004. On March 4, 2004, the plaintiff's attorney sent a preservation letter. The carrier saved only logs for seven days before the accident, but purged all other logs after six months, so the plaintiff alleged spoliation. The carrier argued that the regulations required holding logs for only six months, but the court ruled that the motor carrier had a duty to preserve the logs beyond that period.

In Montemayor vs Heartland Transportation (2008), a truck accident May 6, 2006 resulted in injuries. Driver logs were destroyed six months after the accident as part of normal procedures. DDEC data was not kept for the accident, and the truck sold prior to the lawsuit. The safety director testified she did not anticipate litigation until notice of the suit, which was filed 17 months after the accident. Trucking company interrogatory answers said litigation was anticipated the day after the accident. Company policy was to retain logs longer than six months in the case of an accident with bodily injury, a tow, a citation to the truck driver, or if told to so.

The court held that since the safety director's testimony suggested the possibility that policies were not followed when the logs were destroyed, the spoliation charged survived.

“Because the carrier's policy for preserving DDEC data was not clear, and data from the truck regarding other dates was kept before the unit was sold, the spoliation charge survived,” Hand said. “The Catch-22: A decision on when to ‘anticipate litigation’ to protect investigation or risk a charge of spoliation.”

In Frey vs Gainey Transportation (2006), there was a truck accident with injuries on November 10, 2003. The plaintiff's attorney sent the safety director a preservation letter 10 days later. Qualcomm records were not preserved; the safety director testified that the incident was not serious enough, judging from the plaintiff's conduct after the accident, to preserve the Qualcomm data.

The court found data irrelevant to the claims asserted (negligent supervision, unsafe practices). Ninety days after the accident, the data was automatically deleted in the normal course of business. The court noted the prudent course of action would have been to preserve the data, but balanced the low level of evidence value with the conduct.