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The preservation of evidence letter for truck accident lawyers

December 1, 2012 by Steven M. Gursten

Here’s the seventh installment in my series of blog posts on tips for attorneys who help people hurt in trucking crashes.  On November 22, I wrapped up a trial in Macomb County, Michigan where an unsafe trucker ran over and killed a man.

The trucking company had him sit down with defense lawyers before he would even talk to the police and give a statement as to how the truck accident happened. These lawyers and the truck driver then crafted a “defense” version of what happened, and if not for several eyewitnesses, they may have even gotten away with it.  After killing my client, they certainly did their best to blame him.

This case highlights the high stakes involved in catastrophic truck crash litigation today.  As in most catastrophic trucking cases, the trial defense started within minutes of the tragedy. So don’t be fooled or think for a minute these same defense lawyers or insurance investigators are not combing through the log books and other records that can prove negligence, waiting for the first possible day they can (quite legally) destroy this evidence so that it cannot be later used against them by an experienced truck accident attorney.

The single best way for lawyers to stop this practice is the preservation of evidence letter, also called the spoliation letter.

The preservation  letter saves invaluable evidence that, by law, could be destroyed by a trucking company if it is not put on notice.  Destruction after a preservation of evidence letter should result in a jury instruction at trial that a jury could presume the destroyed evidence was adverse to the company.

Here’s how the records preservation letter can help you.

In conjunction with the initial investigation, truck attorneys should put the motor carrier, truck driver and insurer on notice to preserve evidence. It’s important to send such a notice immediately.

Failure to preserve evidence after being put on notice to do so may result in spoliation sanctions including admission or exclusion of evidence,  an adverse inference jury instruction, and in federal court, the striking of the answer. See generally: Thurman-Bryant Electric Supply Co., Inc. v. Unisys Corp., Inc., 1991 WL 222256 (Tenn. Ct. App. Nov. 4, 1991); Foley v. St. Thomas Hosp., 906 S.W.2d 448 (Tenn. Ct. App. 1995). Note that in Adkins v. Wolever, 554 F. 3d 650 (6th Cir. En Banc 2009). The 6th Circuit joined every other federal circuit to consider the issue and held spoliation, including sanctions, is a matter of federal, not state law.

It is prudent to pare down a template spoliation letter to those items that are reasonably likely to  be relevant.  The single biggest problem I have seen as a lawyer who specializes in trucking cases is that much of the bad law in this area has been the result of other lawyers overreaching and sending 12-page spoliation letters, often in cases of clearly not catastrophic injury cases. This is quite correctly found to be overly burdensome and in some cases, even harassment intended to put pressure on the trucking company.

As in every aspect of litigation, there is a right way and a wrong way to send out a spoliation/preservation of evidence letter in trucking cases. Remember, you should always talk to an experienced truck accident attorney, because many states today (including some that I have litigated very serious truck crash cases in), still do not recognize an independent, third-party tort of evidence spoliation.

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