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A serious truck crash can trigger a lawsuit long before a complaint is ever filed. Within hours of an accident, plaintiff’s counsel may begin looking for the evidence that will tell the story of what happened—and, just as importantly, what the trucking company knew, when it knew it, and what it did afterward.
Today, that evidence goes far beyond the accident report and driver’s log. Electronic logging device (ELD) data, telematics, dash-camera footage, GPS information, dispatch communications, maintenance records, cell-phone data and electronically stored communications can all become important evidence in a trucking case.
For motor carriers, the lesson is straightforward: preserving the right evidence after a serious crash is not simply a litigation task. It is part of the defense.
Call Your Lawyer Immediately
Before the company begins its post-accident investigation, call its lawyer.
This is one of the most important steps a trucking company can take after a serious crash—and one that is sometimes overlooked in the rush to notify the insurer, inspect the vehicle and gather information.
Early involvement by counsel allows the attorney to help direct the company's response from the outset. It also matters because communications with counsel made for the purpose of obtaining legal advice may be protected by the attorney-client privilege, while materials prepared at the direction of counsel in anticipation of litigation may receive work-product protection.
Those protections are not automatic simply because a lawyer is copied on an email or called after an accident. But involving counsel early gives the company an opportunity to structure its investigation, communications and preservation efforts appropriately from the beginning.
Counsel can help the company determine:
The timing matters. Do not wait until a lawsuit is filed to involve counsel. As discussed below, the duty to preserve evidence can arise when litigation is reasonably anticipated. By then, important electronic evidence may already be on a countdown to deletion or overwrite.
The lawyer's role is not simply to defend the company after a claim arrives. Counsel should be part of the company's immediate accident-response team.
The Clock Starts Running Immediately
A company does not necessarily have to wait until a lawsuit is filed before its duty to preserve evidence arises. Under federal law, the preservation obligation can arise when litigation is reasonably anticipated.
The Fourth Circuit has long recognized the duty to preserve evidence when litigation is pending or reasonably foreseeable. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Federal Rule of Civil Procedure 37(e) provides the framework for electronically stored information that should have been preserved but was lost because a party failed to take reasonable steps to preserve it.
That distinction matters because much of the information generated by a commercial vehicle is not necessarily retained indefinitely.
For example, federal regulations require motor carriers to retain ELD records and supporting documents for at least six months. 49 C.F.R. § 395.8(k). ELD regulations also require motor carriers to maintain a backup copy of ELD records for six months. 49 C.F.R. § 395.22(i).
Those regulatory retention periods are not a substitute for a litigation hold or other appropriate preservation measures. If a serious accident occurs, the company should determine—with the assistance of counsel—whether information that ordinarily would be overwritten, deleted or routinely purged now needs to be preserved because litigation is reasonably foreseeable.
What Evidence Will Plaintiff’s Counsel Request?
In a significant truck accident, the list can be extensive.
1. ELD and Hours-of-Service Data
Plaintiff’s counsel will likely want the driver's ELD data—not simply a printed summary of the driver's hours.
ELD regulations require accurate records and preserve information about the driver's duty status. The ELD technical requirements also require the system to retain original records even when permitted edits are made and to maintain event history. 49 C.F.R. § 395.30; Appendix A to Subpart B of Part 395.
That means the relevant evidence may include:
A carrier should not assume that producing a driver's final certified log tells the entire story.
2. Telematics, ECM and GPS Data
Modern trucks can generate enormous amounts of electronic information. Depending on the equipment and system involved, that information may include vehicle speed, braking, engine activity, location, acceleration and other operational data.
The challenge is that retention periods vary considerably by system.
A 2013 Rhode Island case involving Jevic Transportation illustrates the problem. In Berrios v. Jevic Transportation, Inc., the plaintiffs alleged that ECM and Qualcomm data from the tractor-trailer had been discarded under the company's ordinary practice. The court rejected the argument that routine deletion insulated the company from a spoliation claim where the information was potentially relevant to the litigation.
The practical lesson is important: a routine document-retention practice may have to give way once litigation is reasonably foreseeable.
3. Dash-Camera and Other Video
Video can be among the most powerful evidence in a trucking case—and among the easiest evidence to lose.
If a truck is equipped with forward-facing, driver-facing or other cameras, the carrier should immediately determine:
The same analysis applies to video obtained from toll facilities, businesses, traffic cameras and other third parties.
Courts applying Rule 37(e) have emphasized that electronically stored information can include recorded video and audio. See Harvey v. Hall, No. 7:17-cv-00113, 2019 WL 2522192 (W.D. Va. June 18, 2019).
4. Driver Cell Phone and Electronic Communications
The driver's cell phone may become important depending on the circumstances of the crash.
Plaintiff’s counsel may seek evidence concerning calls, texts, app activity or other communications around the time of the accident. Dispatch communications and messages between the driver and the company can also become relevant.
A recent example from the Western District of Virginia demonstrates the potential consequences. In Paul v. Western Express, Inc., the court addressed alleged spoliation of cell-phone evidence and ultimately found that a permissive adverse-inference instruction was warranted against the driver regarding lost phone evidence.
The case is a useful reminder that spoliation issues can affect either side of a trucking case—and can arise from electronic evidence that may seem unrelated to the vehicle itself.
5. Driver Qualification, Training and Safety Records
After a serious crash, plaintiff’s counsel will not necessarily limit the inquiry to what happened on the roadway.
Expect questions about the driver's qualifications, training, experience and safety history, including:
The goal is often to develop a broader narrative about the carrier's safety practices and corporate responsibility.
6. Maintenance and Inspection Records
Maintenance records can become particularly important when the plaintiff alleges that a mechanical condition contributed to the crash.
The relevant evidence may include:
The company should also consider preserving information from the vehicle itself before repairs, alteration or disposal.
The Biggest Mistake: Treating the Accident as “Routine”
One of the most dangerous assumptions a carrier can make is that because an accident initially appears minor, the company does not need to preserve extensive evidence.
The severity of a claim can change quickly.
A seemingly straightforward crash can become a catastrophic injury claim. A disputed lane change can become a case involving hours of service, fatigue, training, cell-phone use or corporate policies. And evidence that appears irrelevant on day one may become important months later.
Once litigation is reasonably foreseeable, the company should have a process for identifying potentially relevant electronically stored information and taking reasonable steps to preserve it. Counsel should be involved early in that process.
What Should a Carrier Do in the First 24 Hours?
A strong accident-response program should include a mechanism for immediately identifying and preserving potentially relevant evidence. The first steps should include:
Call Counsel
Contact the company's attorney as soon as possible after a serious accident. Counsel can help coordinate the investigation, identify preservation obligations and advise the company on how information should be collected and maintained.
Preserve the Vehicle
Preserve the tractor and trailer when appropriate.
Document the condition of the vehicle before repairs or alteration.
Identify onboard electronic systems and data sources.
Secure the Driver’s Information
Secure the driver's ELD information and preserve relevant communications and company records.
Document the driver's account while memories are fresh, while coordinating with counsel regarding the appropriate manner of conducting and documenting the investigation.
Preserve Electronic Evidence
Download or preserve ELD and telematics data.
Secure available dash-camera footage.
Determine applicable overwrite periods.
Identify GPS, ECM and other electronic systems.
Preserve Corporate Evidence
Preserve dispatch records.
Preserve relevant emails, texts and electronic communications.
Identify personnel who may have relevant information.
Suspend routine deletion or overwriting of potentially relevant information.
Preserve Physical Evidence
Preserve photographs and accident-scene information.
Maintain inspection and maintenance records.
Preserve relevant cargo, equipment and component evidence when appropriate.
Preparation Is the Best Defense
The best time to decide what happens to ELD data, dash-camera footage and electronic communications after a serious crash is before the crash occurs.
Every carrier should have an accident-response protocol that identifies who is responsible for preserving evidence, what evidence must be preserved and how quickly the process must begin. That protocol should also identify when counsel must be contacted and give the company a clear process for involving its attorney immediately after a serious accident.
Federal law does not require a company to preserve every piece of information it possesses forever. But once litigation is reasonably foreseeable, failing to take reasonable steps to preserve relevant electronic information can create a problem that is entirely separate from the underlying accident.
In a serious trucking accident, the evidence can tell the story. Make sure it is still there to tell yours.
If you have questions about this article, contact Caleb Setliff (csetliff@setlifflaw.com) at (804) 377-1267 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.
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