After a big rig accident or tractor-trailer crash, investigative teams will take weeks or months to comb through all the data; witness statements; videos; documents; records; and other sources of fact (like a trip to the accident scene) in order to determine the cause of the semi-truck crash. Lots of this information will be within the possession, custody, or control of the very parties who may be held legally liable for the truck accident.
Obviously, there’s a concern they may dump things that show how they were at fault. So, the law places lots of deadlines on those who may have legal liability after a large commercial truck accident to safeguard things. This gives safety agencies and injured victims time to review all the facts before things disappear, get lost, are overwritten or destroyed.
Truck crash victims need to be aware of these time limits. As overwhelming as it is, the truck crash victims have the responsibility to investigate things and pursue legal claims while they also deal with all the complex realities that come with a catastrophic motor vehicle collision.
For details, read our previous article, Semi-Truck Crash Victims Need to Know How Fast FMCSA Evidence Preservation Deadlines Expire.
FMCSA Deadlines for Retention of Evidence
The deadlines themselves are established within the Code of Federal Regulations (“CFR”) and overseen by the Federal Motor Carrier Safety Administration (“FMCSA”). If these protective deadlines are violated and the potential defendants lose, misplace, destroy, or otherwise block access to these things, there may be ramifications from the government.
Truck crash victims need to know that the law does not allow the injured victim to sue for violations of these CFR deadlines themselves. There are ways for these victims to find justice, however, if the wrongdoers fall prey to temptation or through inadvertence get rid of the very things that provide evidence of their wrongdoing.
And this dovetails with claims based upon carriers and others getting rid of other kinds of truck crash evidence that currently is not covered by the CFR deadlines overseen by FMCSA. Not every type of key source of evidence needed by the truck accident experts to find causation is covered by these federal retention deadline protections.
Regulatory Deadlines Do Not Cover Some Key Pieces of Evidence
There are no federal laws that force safeguarding of the data stored on some vital technology found on many commercial trucks rumbling through Illinois and Indiana today. For example, some kinds of vehicle safety technology like radar sensors; dashcam videos; and stuff stored on Electronic Control Modules (“ECMs”) like hard-breaking, are not mandated for retention with specific regulation deadlines. See 49 CFR §393.5. And ECMs are a big deal in any motor vehicle accident case, as they are sometimes described as the “vehicle’s brain.” Read, “What Is the Electronic Control Module?” published by Auto Zone.
Accident reconstruction experts will be particularly concerned about accessing all this digital information quickly, because it can be overwritten very fast and lost forever.
Why? Consider the information stored by a temporary part of the system, where things like speed and steering angles are recorded at the time of a hard-brake. This may be extremely important to the reconstructionists, but the data may be lost forever if it is overwritten when the truck is driven again. See, Del Soldato, A. “Digital Vehicle Forensics: challenges and opportunities.”
Legal Notice to Protect Preservation of Evidence: The Spoilation Letter
Semi-truck crash victims and their loved ones need to know that they have the legal duty to prove up their rights to damages from those who caused the big-rig accident. Working with their legal advocates and experts in accident analysis, those suffering from injuries and the aftermath of the truck crash must not only work to determine all the parties who have legal culpability, but exactly how the crash happened with admissible and authenticated evidence of fault.
The FMCSA evidence retention deadlines (detailed in our previous article) help the injured victim by mandating things be stored and protected for set periods of time. However, there are other core sources of possible causation evidence that are not within CFR deadline protections.
For both these categories, but especially for those without legal retention deadlines, the need for a speedy “spoilation letter” to be sent on behalf of the truck crash victim cannot be underestimated.
What is The Spoilation Letter (Evidence Preservation Letter)?
As soon as possible, the commercial truck crash victim’s legal counsel can send formal correspondence to the motor carrier involved in the semi-truck accident. This letter will have specific requests within it. It will list all sorts of things that the injured victim is requesting be preserved and protected.
Known as a “spoilation letter” or “evidence preservation letter” this document will be detailed and lengthy. It will identify things like the driver’s daily inspection reports pursuant to 49 CFR §396.11, §396.13. It will also cover things like all electronically stored data regarding the accident itself, as well as the truck driver, the trailer, and the tractor.
The requests need to be far reaching; after all, the accident reconstruction experts may review the facts and discover things like something involving the tractor, and not the trailer or the trucker, ignited the chain of events that resulted in the tragic crash. For more, read Illinois and Indiana Semi-Truck Crash: Common Ways the Trailer Causes the Accident.
Since those who possess, control, or own some of these data sources may be able legally to overwrite them, dump them, or otherwise destroy them absent the legal demand for preservation made by the crash victim, it is imperative that the spoilation letters be sent out as fast as possible after the crash.
Dash cam video, and other important clues to causation, may otherwise be lost within thirty (30) days of the accident itself. Some dash cams may loop over the key images in as little as 24 – 72 hours.
Punishment for Disrespecting the Spoilation Letter
These letters are powerful under the laws of Illinois and Indiana. As much as the recipient may want to ignore the spoilation letter, to do so brings its own wave of negative consequences. Failure to preserve evidence after getting a letter requesting preservation of that evidence may mean facing severe sanctions imposed by a judge against that party.
There may be a legal inference that the evidence that is not available was detrimental and presumed to show wrongdoing on the part of the party that failed to safeguard it. Juries may be instructed by the judge to make this assumption, which can lead to a favorable verdict for the crash victim at trial.
From the Indiana Supreme Court in Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000):
Spoliation of evidence consists of “`[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.'”
Should a Semi-Truck Crash Victim Send The Evidence Preservation Letter Themselves?
A truck crash victim or their loved one may be tempted, especially given the speed with which these letters need to be sent, to write and send a “request for evidence preservation letter” themselves. This is risky.
The spoilation letter, if there has been lost or destroyed evidence, will be key in fighting the wrongdoer who may well argue that the correspondence had a gap in it and the missing stuff wasn’t covered in its language. Or maybe they will argue it was overly broad and too murky to cover the things that have disappeared. Never underestimate the creativity of defense counsel challenging the details of this type of letter.
Consider the following:
1. An effective spoilation letter, written by lawyers with expertise and experience in semi-truck crash claims, will likely include all sorts of details and references not only to statutes and regulations, but maybe court case citations as well.
2. It will not only identify specifics to be protected, but it will have evidence of the date sent and received in order to confirm the exact time when the carrier was put on notice.
3. It will counter any argument about exactly what is to be saved and protected by going into categories and types of evidence with descriptions provided not only from a legal perspective but also from the technical knowledge of the truck accident analysis experts.
4. Additionally, there will likely be more than one spoilation letter sent on behalf of the crash victim. Working together, the legal team and the accident reconstructionists may find it wise to send an evidence preservation request not just to the carrier, but to the truck driver; all the insurance companies with policies that may cover the wreck; any companies that repaired, inspected, or maintained the trailer or the tractor; the shipper who loaded the rig; the vendors who sold the technology gizmos; and any other third party who may have legal liability for the truck crash.
For more, read:
- Semi Truck Crash Liability: Third Party Liability in Indiana Truck Accidents.
- Chameleon Carrier Truck Crash Injury Claims in Illinois and Indiana
- Truck Crash Injury Claim Evidence: ELDs, EDRs, and FMCSA Regulations to Show Liability
- Semi-Truck Crashes and Accident Victim’s Injury Claims: FMCSA Revoking More and More ELDs
- CMV Dash Cams and Truck Crash Injury Claims in Illinois and Indiana.
Preservation of evidence after a semi-truck crash is extremely important and things can be lost to the victim literally within hours of the accident. Acting as fast as possible in these situations is important. Truck crashes are more likely in our part of the country than in other states. Please be careful out there!
