There is a certain rush as a trucking professional when you catch wind that an accident has occurred. I imagine this is similar to what first responders experience, though I would hardly put lawyers in that same category. (The jokes alone speak for themselves as to whether lawyers actually help anyone … but try to claim privilege without us…but I digress. ) When the first notice of a loss is called in, it is often followed by a panic and a flood of questions with very few answers. Who was involved? How many someones? What ACTUALLY happened? Where? Why? And then the questions that start various clocks — any injuries? Any tickets? Any tows? Any hazmat cleanup needed? Any damaged cargo?
And suddenly, there is a flurry of activity and an effort to communicate the relevant information to the people who need it — dispatchers are texting drivers stranded on the side of the road. Safety personnel are emailing instructions and electronic links for drug testing sites nearby. Someone notifies the company CEO of the disaster. John in the shop is updated because we need to get a wrecker out there ASAP. Frank in operations is looped in — we are going to be out of hours and the load is still 6 hours away. We need another driver pronto. Oh wait — we also need a rental truck or someone else in that general vicinity. Becky with the good hair in marketing is now accidentally included in an email string because her name starts with the same letter as Betty in claims and someone was in a hurry. And in an effort to wrangle all this information and the proper logistical response, someone takes a deep breath and realizes, oh, hey. Maybe we should notify the TPA or carrier and get them to open a claim “just in case.” Should we call the lawyer? “Nah. Too expensive to get them involved this early. We can handle it. An hour for a lawyer is like 5,000 miles on the road.” And Joe, the night dispatcher who somehow got on the email string chimes in, “Yep. Probably a good idea to call insurance. That driver left here early this morning like a bat outta hell, thought he was on something, which wouldn’t surprise me given what happened to him last week.”
Let me put it bluntly: As much as you fight it or would hope to believe otherwise, all the above-mentioned correspondence is probably discoverable (subject to objections and discovery fights, of course). It is not privileged. It is not protected. It is not confidential. All of it — from the text messages between the driver and dispatch (who even knows what they might say or if they got deleted!) to the comment about the lawyer (gasp – profits over people!) to the very last comment by Joe (don’t laugh – I’ve seen a variation of it), is likely going to be responsive to a request for production should this accident go to court and you are confronted by a plaintiff attorney who has been out of law school for more than a week.
What is relevant evidence? According to Federal Rule of Evidence 401, “Evidence is relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence; and b) the fact is of consequence in determining the action.” What is privileged? In the most basic sense, attorney-client privilege “means the protection that applicable law provides for confidential attorney-client communications.” Fed. R. Evid. 502(g)(1). Materials may also be protected pursuant to the “work product protection” which is “the protection that applicable law provides for tangible material (or its intangible equivalent” prepared in anticipation of litigation or for trial.” Fed. R. Evid. 502(g)(2).
If a claim arising from an accident goes to litigation, the very first set of interrogatories and requests for production of documents you will get will include the following:
- INT: State the name and address of each person having any knowledge of facts related to the subject collision, its cause, the damage resulting form it, and/or any other matters alleged in Plaintiff’s Complaint.
- Note: every person identified in paragraph two of this article would fall under this category.
- RFP: Produce a copy of any and all statements, summaries, diaries, memoranda, or other writings of Defendant describing any of the circumstances of, leading up to, or subsequent to the incident described in the Compliant.
- NOTE: Document is earlier defined to include emails. Every text and email identified in paragraph two of this article would be responsive to this request.
So, what do you say when the stuff hits the fan?
First, stick to the facts. Who, what, where, when. When putting things in writing, in any format, only include those pertinent details that will allow information to be transferred so that a proper response can occur. Loose lips sink ships was propagated in WWII for a reason. Be sure only to loop in those people who need looped in and facts are all that are needed. In accident response, there is a job to be done and it is not the place for speculation, opinion, color commentary, or narrative.
Second, use the telephone or in-person communication everywhere possible. Email and text is more convenient, sure. But, in-person talk is more direct, less prone to confusion or misinterpretation, and it is generally un-preservable.
Third, as soon as you have information that an accident is something more than a minor event (however your company policy defines that – and make sure you do have a way of defining that), get the insurance carrier and lawyer involved. The involvement of insurance and lawyers takes investigation and accident response out of normal business operations and makes a better argument that the response is “in anticipation of litigation” or is “work product” or contains “mental impressions of a party” or some other legal mumbo jumbo that makes for good objection and legal argument fodder when litigation is filed and we need to defend the case. Most importantly, once the attorney or insurance carrier is on board, ensure they have either directed each step of the investigation, have knowledge, or are actually involved to best protect the results.
Fourth, make sure everyone on your team is on the same page. This does not work if only the big dogs know how to run with the pack. The little dogs have to keep up too. So, educate the whole team on the importance of communication and accident response and the impact it may have later down the road.
For more information regarding what to expect in discovery, training on discoverable communications, or general trucking comedic relief, please feel free to contact Amy Tracy (email@example.com) at 804-377-1264 or Steve Setliff (firstname.lastname@example.org) at 804-377-1261.