I had a deposition this week that raised a recurring issue in many of my more serious truck accident cases, and I would like to share it with my fellow truck accident lawyers. After any serious truck accident, where the trucking company has seriously injured or killed someone, it is now common for the truck company’s insurance carrier to send rapid response teams to the scene of the accident. These rapid response teams will usually include accident reconstructionists, adjusters and even the defense lawyer for the truck company.
When I get the truck accident case — usually weeks or months after the collision occurred — I ask for the accident scene investigation results from the insurance and trucking company. The objection I receive is that the investigation is privileged as work product created in anticipation of litigation. And then the truck accident attorneys for the insurance company that killed or seriously injured my client refuse to turn over the information.
What happens next is the fun part.
Trucking companies are required by federal law to hold and retain certain crucial evidence for specified periods of time, which can be very short. Truck accident attorneys are at a huge disadvantage, because families that have had a family member seriously injured or killed don’t usually run out in the first couple months to hire a truck accident lawyer. If the family waits too long, the evidence can be legally disposed of and critical evidence that could have proved the case is gone forever.
For example, trucking companies are only required to retain hours of service driver logs for six months under Federal Motor Carrier Safety Administration law 395.8(k). Driver’s Vehicle Inspection Reports can be thrown away after as little as three months after a fatal truck crash under 396.11.
In other words, critical evidence that I and other truck accident attorneys could have used to prove the trucker was driving over hours, that the truck was defective and out of service, or in a poorly maintained and dangerous condition, can be legally destroyed by the trucking company within months of a fatal truck crash!
But not always.
When a trucking company’s lawyers raise the objection that the investigation after a serious truck crash is privileged work product made in anticipation of litigation, the defense lawyers cannot have it both ways. If defense lawyers — or the trucking company at the lawyers’ behest — destroyed or threw away evidence, then they must not have anticipated litigation. If they did anticipate litigation, then they have just committed spoliation of evidence. Therefore, they can be rightly sanctioned and the evidence compelled to be turned over. It is very simply an “either/or” type decision tree for the trial court. Either way, a truck accident lawyer should be able to get that evidence or the court should order negligence admitted and otherwise sanction the defense.
For more information about handling a truck accident case in Michigan, please visit my Truck Accident Lawyers Resource Center, which has an entire section devoted helping attorneys handling Michigan truck accident cases. It covers topics including legal discovery, black boxes, truck accident experts and finding all insurance after a truck accident. To speak with a truck accident lawyer directly, call (800) 777-0028.
– Steve Gursten is recognized as one of the nation’s top attorneys handling serious truck accident injury cases. He is on the executive board of governors representing Michigan for the Association of Interstate Trucking Lawyers of America and is immediate past president of the American Association for Justice Truck Litigation Group. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the last seven years, including 2008.
– Photo courtesy of Creative Commons, by Dossup
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