The Role Immediate Evidence Preservation and Inspection Plays Uncovering Corporate Wrongdoing in “Simple” Truck Crashes

Written By:  Edward J. Rebenack

In the two decades I have litigated truck crash cases in New Jersey, I have seen some plaintiffs’ attorneys struggle to maximize their clients’ recoveries in such cases because they are unfamiliar with best practices for investigating and prosecuting these cases. These attorneys often built their cases around straightforward liability arguments, such as a truck driver being the only one at fault when they crashed into a car stopped at a red light on a clear afternoon. They then pursue damages without exploring whether other defendants could be liable, aside from basic vicarious liability.

In many truck crash cases, however, the simpler the set of facts, the more likely it is that wrongful conduct contributed to the crash.

For example, in a case with the facts that I mentioned above, perhaps the truck driver’s employer, and maybe other defendants, were not simply vicariously liable. Perhaps, upon further investigation, the other defendants engaged in negligent hiring, negligent retention, or negligent supervision. In those cases, the plaintiff could have direct claims against corporate defendants. And, depending on the conduct alleged, the plaintiff could pursue punitive damages, which, of course, would exponentially increase the value of a case where the truck driver was initially viewed as the only liable party.

To properly investigate a “simple” truck crash and uncover evidence that supports corporate claims that could lead to punitive damages, a plaintiffs’ attorney must act quickly to preserve and inspect key evidence.

The First Steps: An Order to Show Cause and Spoliation Notice

When there are significant, and certainly when there are catastrophic, injuries in a truck crash, the first step in preserving evidence is to apply to a court for an order to show cause preventing the truck’s owner or other corporate defendants from touching or transporting the vehicles involved in the crash. 

To protect this evidence in New Jersey, plaintiffs will need to file an Order to Show Cause with the Superior Court, pursuant to New Jersey Court Rule 4:67, explaining why immediate court intervention is necessary. The court will evaluate the “serious and irreparable” harm the plaintiff expects to suffer if the court does not intervene immediately. The plaintiff will need to persuade the judge that the destruction of evidence would harm them and that it would create problems that later monetary damages would not fully compensate for. 

Towards this end, sending a spoliation notice is critical too. A spoliation notice informs the other party or parties that litigation is imminent and they should preserve all relevant documents and related evidence. The spoliation notice initiates the recipients’ duty to preserve, ensuring that any evidence they intentionally or unintentionally destroy can lead to adverse inferences at trial in the plaintiff’s favor.

Spoliation notices are vital to a plaintiffs’ attorney’s investigation because the documents and information they cover are pieces to the direct liability puzzle they will need to assemble as they investigate the case. Often, they will do so with an eye toward determining whether the driver, the driver’s employer, or other corporate defendants violated federal or New Jersey regulations.

For example, bills of lading for a truck’s trips over a specified period, such as the past 7, 14, or 30 days, will show the origin and destination of all the cargo hauled by the truck during that period. These documents will reveal whether the driver could have traveled the distance between all their stops during that period while complying with federal and New Jersey regulations regarding the number of hours they can be on the road in a day or week, as well as the rest breaks they are required to take.

The same applies to maintenance logs, which must be retained for at least six months under federal regulations and for one year under New Jersey regulations. These documents will indicate whether the truck involved in the crash was properly maintained in accordance with federal and New Jersey regulations. Combining a review of the logs with a vehicle inspection will help a plaintiffs’ attorney determine whether there were repairs that should have been made but were not.

A spoliation notice should also preserve documents that a plaintiffs’ attorney can use to determine if a driver or their employer is falsifying service logs. For example, receipts from gasoline purchases typically include the date, time, and fuel amount. Given their presence, or lack thereof, plaintiffs’ attorneys can use them to determine whether it was possible for a driver to travel from Point A to Point B without either speeding or falsifying other records. 

Additionally, plaintiffs’ attorneys can utilize driver qualification files, performance reviews, and similar records to establish corporate defendants’ knowledge of performance issues or other problems with a driver, thereby supporting negligent hiring, training, or supervision claims. The accident records, drug and alcohol testing records, and training files that carriers are required to maintain can also help establish this knowledge.

What to Look For During a Vehicle Inspection

Today’s trucks are computers on wheels that have several devices and systems that retain information about their operation, but not permanently. It’s imperative for plaintiffs’ attorneys to conduct their vehicle inspection as quickly as possible after a crash to ensure there’s no data loss caused by devices’ and systems’ default settings, or a corporate defendant’s actions.

For example, engine control modules operate similarly to black boxes on airplanes. They register when a triggering event occurs, such as a sudden change in speed within a short time, indicating abrupt braking or a crash. They also take snapshots of various truck operations, showing throttle usage, revolutions per minute (RPMs), steering wheel positioning, whether the clutch is engaged, whether the seatbelt is worn, and other important information. This information can provide a clearer picture of what happened right before the crash, whether various equipment was functioning correctly, and whether the driver was acting negligently. 

However, engine control modules are programmed to override older data frequently. Some models will only remember the last three triggering events. Others will erase data for the previous day when the ignition switch is turned on the following day. Thus, time is of the essence when capturing data from them.

Besides devices and systems like engine control modules, an inspection of a truck cab’s interior can uncover evidence of wrongdoing by a driver, knowledge of which (or lack thereof) by their employer could lay the groundwork for direct claims against it. Pill bottles, synthetic urine (for evading positive drug tests), and open containers raise several questions. Did the employer know about the driver’s conduct? If not, why not? If so, why were they still on the road? 

Dash cameras record both internal and external video, with some models featuring AI technology that detects when the driver appears to be falling asleep. These cameras then notify the driver and the company of the issue, ensuring a record is kept. Footage from these cameras, along with records of alerts, should be gathered during an inspection.

Unsurprisingly, the driver’s cell phone can also be a crucial source of information, as it can reveal if they were using their phone immediately before or during a crash. Including the phone in the Order to Show Cause is an essential first step toward accessing and exporting data from it.

Consider the Role of Expert Witnesses

Expert witnesses will play a vital role in preserving and inspecting evidence in a truck crash case. They will be expensive, but the best ones are well worth their fees.

Plaintiffs’ attorneys will likely need experts to help access, download, and interpret data from a truck’s various devices. They will need expert mechanics who can review and analyze the evidence, discuss how drivers prepare their trucks for long trips, inspect them before they hit the road, and share best practices for operating them. Accident reconstruction experts are often necessary to help make a strong case at mediation and trial. After reviewing the evidence, they will document the scene and map out exactly what happened, when it happened, and why it happened, to paint a compelling and persuasive picture for the court and the jury. 

Remember That The Other Side Has Attorneys, Too

Finally, plaintiffs’ attorneys in truck crash cases sometimes seem to forget that the other side has attorneys, too. They do not anticipate defense counsel making the same requests of their clients that they will make of the defendants. This includes their client’s cell phone data, any onboard data from their car, vehicle maintenance and inspection reports, and more. 

This leaves their clients open to comparative negligence claims. Thus, plaintiffs’ attorneys in truck crash cases must know their clients. There are smart attorneys representing trucking companies, so it pays for plaintiffs’ attorneys to know early whether their clients’ cases could be vulnerable to comparative negligence claims, what the nature of those claims could be, and how to prevent them from torpedoing a case.

Truck Crash Cases Are a Special Breed of Crash Cases

Ironically, speed is often the key factor in prosecuting truck crash cases. By the time a would-be plaintiff contacts an attorney about a crash they were involved in, the attorney is already behind. Large truck companies and their insurers have rapid response teams that quickly arrive on accident scenes with their own experts and attorneys. It is imperative for plaintiffs that their attorneys preserve evidence and inspect it as soon as possible after a truck accident. The closer plaintiffs’ attorneys can get to real-time responses to truck crashes, the less advantage a trucking company has, and the better the chance they have at maximizing the recovery for their clients.

Truck crash cases are not always what they appear to be. A “simple” crash could be one that resulted from corporate malfeasance, the likes of which a jury could award punitive damages for. 

But to get a case to that point, plaintiffs’ attorneys need to act promptly to preserve and inspect evidence, or co-counsel with attorneys who have a proven track record in these cases and know how to do so.

Edward J. Rebenack, a co-founding partner at RAM Law in Somerville, concentrates his practice on representing individuals injured in truck and bus crashes. He has been certified by the Supreme Court of New Jersey as a Civil Trial Attorney since 2005, is a member of the Board of Regents for the Academy of Truck Accident Attorneys, and obtained Board Certification in Truck Accident Law by the National Board of Trial Advocacy. He can be reached at erebenack@ram.law.