The Federal Motor Carrier Safety Administration (FMCSA) has a list of rules and regulations that every trucking must follow. The more trucking cases we take to trial, the more it has become apparent that truckers are either destroying key FMCSA documents, or simply never creating documents in the first place. The implications of such actions can be far-reaching and have serious consequences. Such acts deprive the plaintiff of performing a full investigation into the company and the trucker themself. The courts allow the plaintiff to seek sanctions – essentially legal consequences for failing to abide by the law.
TRUCKERS MUST CREATE AND RETAIN AND KEEP REQUIRED FEDERAL MOTOR CARRIER DOCUMENTS
Every trucking company is considered a carrier per the FMCSA. As a Carrier, Longhorn must abide by the FMSCA safety regulations. Under the FMSCA, certain documents must be retained, such as:
FMCSA Part 395, Subpart A, provides that a motor carrier like Defendants “shall retain records of duty status and supporting documents [otherwise known as the driver’s logs or logbooks] required under this part for each of its drivers for a period of not less than six months from the date of receipt”.
FMCSA Part 396.11 & 396.13 provides that drivers must make a report in writing at the completion of each day’s work on each vehicle in operation.
Drug and Alcohol Testing
For the past five years, the following must be kept:
- Alcohol tests that result in a BAC of 0.02 or greater
- Positive controlled substances tests
- Documentation of a driver refusing testing
- Substance Abuse Professional reports
For the past two years: the following must be kept:
- Random Test Subject Selections
- Documentation of Reasonable Suspicion
- Substance Abuse Professional reports
For the pat year: the following must be kept:
- Drug Test Results that are Negative or Canceled
- Alcohol Tests Showing a BAC below 0.02
Driver Qualification File
For each driver, the company must retain:
- Employment Application
- Medical Examiner’s Certificate
- Copy of Driver’s License
- Road Test Certificate
- Motor Vehicle Records
- Clearinghouse Verification
- Annual Driving Record Review
- Pre-Employment Drug & Alcohol Test Results
- Drug & Alcohol Testing Program/Policy
- Previous Employer Requests & Responses
This is but a small list of documents that must be created, retained, and kept by the trucking company. Other documents, including vehicle maintenance records, bills of lading, violations summaries, and more are also required to be maintained. However, the worse these records look, the more likely that they will never be produced in litigation and will somehow disappear. The Court allows for certain consequences should trucking companies operate without keeping records.
REQUESTS FOR SANCTIONS FOR SPOLIATION
If Defendant is unable to produce the above documents as requested, Plaintiffs can request the Court to grant a Motion for Sanctions for Spoliation. Spoliation is the improper loss or destruction of relevant evidence. Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 13 (Tex. 2014). A party that does not reasonably preserve discoverable evidence can impair the opposing party’s ability to present its claims or defenses. Id. at 16. Tex. R. Civ. Pro. 215.2 and 215.3 enumerates the available sanctions for this discovery abuse when imposing a remedy for spoliation.
Therefore, “a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy”. Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014). However, to “conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so”. Id. The key consideration in imposing a sanction remedy is the “level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoilating party”. Id.
The threshold question to the Court’s imposition of sanctions for spoliation of evidence is whether Defendants had any duty to preserve the destroyed data. Brookshire Bros., 438 S.W. at 20; Wal-Mart Stores v. Johnson, 106 S.W.3d 718, 722 (Tex.2003). Defendants have a duty to preserve when they knew or should have known:
- There is a substantial chance a claim will be filed; and
- Evidence in the party’s possession or control will be material and relevant to the claims. Id. at 20.
This determination is an objective standard. IQ Holdings, Inc. v. Stewart Title Guar. Co., 451 S.W.3d 861, 867 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Brookshire Bros., 438 S.W.3d at 20 (applying “reasonable person” standard to duty determination). A party reasonably should know that a substantial chance of a claim against it exists if a reasonable person would conclude from the severity of the incident, and other circumstances surrounding it, that there was a substantial chance for litigation when the alleged spoliation occurred. Brookshire Bros., 438 S.W.3d at 20 (citing Wal–Mart, 106 S.W.3d at 722); Miner Dederick, 403 S.W.3d at 465. “[A] ‘substantial chance of litigation’ arises when ‘litigation is more than merely an abstract possibility or unwarranted fear.” Brookshire Bros., 438 S.W.3d at 20 (quoting Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex.1993)). A party can anticipate litigation before it receives actual notice of potential litigation. Clark v. Randall’s Food, 317 S.W.3d 351, 356 (Tex. App.-Houston [1st Dist.] 2010, pet. denied).
The requesting party must show that the producing party breached the duty to preserve material and relevant evidence. Brookshire Bros., 438 S.W.3d at 20. The producing party breaches its duty to preserve evidence if it does not exercise reasonable care. Id. Intentional spoliation, also referred to as bad-faith or willful spoliation, occurs when a party acts with a subjective purpose to conceal or destroy discoverable evidence. Id. at 24. Intentional spoliation includes “willful blindness,” which occurs when a party allows for the destruction of relevant and discoverable evidence, although the party does not directly destroy the evidence. Id. When a party’s duty to preserve evidence arises before it destroys evidence, the fact that it followed a corporate retention policy will not justify the destruction. Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 360 (Tex. App.—Fort Worth 2007, pet. denied) (D’s duty to preserve evidence arose before it destroyed herbicide sample), disapproved on other grounds, Brookshire Bros. v. Aldridge, 438 S.W.3d 9 (Tex.2014).
Before imposing a remedy, the court must evaluate any prejudice suffered by the requesting party. Brookshire Bros., 438 S.W.3d at 21 & n.9. The court must look at (1) the relevance of the missing evidence to key issues in the case and (2) whether the missing evidence was harmful to the producing party’s case or, alternatively, would have been helpful to the requesting party’s case. Id. at 21; Trevino, 969 S.W.2d at 958 (Baker, J., concurring). A party’s intentional spoliation of evidence, without any contradictory evidence, may be sufficient to support a finding that the missing evidence is relevant and harmful to the producing party. Brookshire Bros., 438 S.W.3d at 22. A party’s negligent spoliation of evidence, however, cannot support those findings without some proof—which can be circumstantial—of what the missing evidence would show. Id. at 22 & n.12; Trevino, 969 S.W.2d at 958 (Baker, J., concurring).
The purpose of discovery is to seek the truth, so disputes may be decided by what facts are revealed, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). The purpose of sanctions is to secure compliance with the rules, to deter future violation of the rules, and to punish parties that violate the rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). Imposing mild sanctions would allow Longhorn, who presumably possesses or destroyed disfavorable evidence, to blatantly destroy that evidence, thus assuring extreme prejudice to Plaintiffs while risking only a comparatively mild rebuke.
The key to getting these sanctions in Court is to act quickly. Our firm’s policy is to send out letters for preservation immediately, to anyone involved in a wreck, including the trucking company, the driver, the insurance company, the shipper, and even the tow company. We then immediately file suit and get everyone served, even if the wreck happened only hours before. We have learned that the sooner we get a lawsuit on file, the sooner we can preserve the evidence and put everyone on notice to stop the shred.