Trucking litigation has recently changed with the addition of electronic discovery and new safety standards for the comercial carrier industry.
New electronic control modules, trip recorders, and satellite tracking equipment have changed the rules of the game. Plaintiff’s lawyers can now discover details about the truck driver’s activities before the collision, speed, reaction time, braking, maintenance, and other key aspects.I have an investigator who specializes in 18-wheeler crashes who travels all across the state to download information from truck black boxes. There have been numerous cases where the information about speed, cruise control, and breaking has been the key piece of evidence proving the defendant’s negligence.
In the trucking industry, e-discovery rules can affect the entire gamut of commercial carriers. The safety features and technology used in today’s trucks will continue to add an increased burden on the e-discovery process in these lawsuits, as opposed to recent years where a paper format was the more
Innovative Technology in the Industry Leads to More Discoverable Data
The trucking industry has undergone noteworthy regulatory changes, which has eventuated new e-discovery issues for those attorneys trying cases in the industry. In 2010, the Federal Motor Carrier Safety Administration (FMCSA) launched the Compliance Safety Accountability program to toughen safety requirements for commercial motor carriers. This was created to hold trucking companies to a higher standard, and one result is the enhanced ability to gather data during discovery.
There are a large number of sources of electronically discoverable information to be found from within a trucking company. Most commercial carriers use satellite tracking and monitoring devices on trucks to track loads, trailers, and trucks. This is particularly true of large national outfits. These satellite systems allow quick communication with drivers, but a lot of the electronic information that is transmitted is discoverable evidence in litigation.
One of the more common providers of these satellite systems would be Qualcomm, which manufactures computer hardware for tractor trucks that communicates with satellites in orbit around the planet. In addition to allowing truckers and dispatchers to send text messages about their trips in quick fashion, these systems also allow drivers to record their driving time and submit driving log information that in the past would have been done via paper logs.
It’s worth noting that these new satellite systems may allow for higher volume of discoverable data to be yielded, but also leads to third parties possessing some of that data. For instance, with the monitoring of the engine and of the truck’s performance being conducted via satellite, by definition the satellite monitoring companies that the carrier engages convert the raw data they receive from satellites and send it electronically to the dispatch center of the carrier. This is delivered in a readable form, but the unadulterated original information remains on the satellite’s networks and servers.
Regulatory Changes and their Impact on E-Discovery
In the specific handling of e-discovery in trucking cases, new regulations that deal with the use of electronic onboard recorders, pre-employment screenings, and FMCSA safety reporting were required.
The biggest change in this area of the law may be in the regulating of safety reporting. Recent changes have had significant impact on the e-discovery process in these cases. Safety concerns involving trucking companies now fall under the aegis of the FMCSA’s Safety Measurement System (SMS), which according to the FMCSA’s web site uses a motor carrier’s data from roadside inspections, including all safety-based violations, state-reported crashes, and the federal motor carrier census to quantify performance.
According to the FMCSA, this new system is designed to “identify high-risk motor carriers for priority intervention” and “identify motor carriers with patterns of on-road performance and compliance issues for intervention: The SMS now grades the trucking company in seven areas that the Department of Transportation has decided are key to preventing crashes, based on federal motor carrier safety regulations and prolonged analysis of crash statistics. These seven line items are called BASICs (behavioral analysis and safety improvement categories), and determine a trucking outfit’s safety rating. These discoverable criteria are: fatigued driver, driver’s fitness, use of controlled substances or alcohol, vehicle maintenance, unsafe driver, crash indicator, and cargo-related problems.
Portions of this article originally published in the Langdon & Emison Newsletter, Fall 2012