Five years ago, Congress passed the Commercial Motor Vehicle Safety Enhancement Act of 2012, which ordered the Secretary of Transportation to regulate commercial motor vehicles by requiring most of them to be equipped with electronic logging devices (“ELDs”) for purposes of improving compliance with hours-of-service regulations. 49 U.S.C. § 31137(a)(1). To comply with the statutory mandate, the Federal Motor Carrier Safety Administration (“FMCSA”) issued its final ELD mandate in 2015 requiring certain commercial vehicles to be equipped with ELDs (the “ELD mandate”). (See Electronic Logging Devices and Hours of Service Supporting Documents, 80 Fed. Reg. 78,292 [Dec. 16, 2015]). Controversy has surrounded the ELD mandate since its inception, including multiple challenges to the mandate by various groups within the trucking industry and the introduction of a bill seeking to delay the implementation of the ELD mandate by another two years. (ELD Extension Act of 2017, H.R. 3282, 115th Congress [2017-2018]; Bill Sullivan, ATA Opposes Efforts to Delay ELD Deadline, http://www.trucking.org/article/ATA-Opposes-Efforts-to-Delay-ELD-Deadline [Aug. 31, 2017]; OOIDA Files ELD Enforcement Petition With FMCSA, http://fleetowner.com/regulations/ooida-files-eld-enforcement-petition-fmcsa [Aug. 31, 2017]). While the controversy and debate surrounding the ELD mandate is not likely to go away any time soon, there is no doubt that use of ELDs throughout the trucking industry will change both the industry and the way that trucking claims are litigated.
Implementation of the ELD mandate may benefit motor carriers in terms of cost savings, may increase motor carrier safety ratings by preventing hours-of-service and other violations of the FMCSRs, and will save lives and prevent numerous injuries resulting from accidents involving commercial motor vehicles. (Electronic Logging Devices to be Required Across Commercial Truck and Bus Industries, Dec. 10, 2015, https://www.fmcsa.dot.gov/newsroom/electronic-logging-devices-be-required-across-commercial-truck-and-bus-industries). While electronic data has been utilized by larger motor carriers for years, the fact that motor carriers of all sizes will now be required to maintain voluminous electronic data through use of an ELD service provider may assist those plaintiff’s lawyers utilizing “reptile” tactics to influence jurors by allowing them to easily point out prior violations of the FMCSRs and notice of such violations by the motor carrier, which may result in an increase in the overall value of trucking claims. Additionally, the maintenance of voluminous amounts of data by a motor carrier’s ELD provider will undoubtedly increase the use of electronically stored information (“ESI”) in discovery and will raise questions concerning the extent to which such information is discoverable in the context of a trucking claim.
A. ELDs and “Reptile” Tactics: Changing the Focus of Trucking Claims
By now, most civil defense litigators have either heard of or experienced a plaintiff’s attorney who uses “reptile” tactics in an effort to inflate the value of their case and influence jury decision-making. The “reptile” strategy triggers jurors’ survival instincts, or their “reptilian brain,” by emphasizing that the defendant’s actions present an immediate danger to their community and that the actions of the defendant must be punished as a means of deterrence. (What is Reptile Theory?, Excelas, http://www.excelas1.com/perspectives/blog/post/2016/07/29/What-is-Reptile-Theory.aspx [Sept. 5, 2017]). Use of reptilian tactics is common in civil cases involving tractor trailer collisions, with plaintiff’s lawyers framing pleadings, discovery, depositions, and trial around the action or inaction of the motor carrier and/or the driver rather than focusing on the actual accident or the plaintiff’s injury. Generally, in such cases, reptile tactics are focused on (1) establishing the existence of a general or specific danger or safety rule, (2) luring a defense witness into agreeing that such a danger/rule exists, (3) demonstrating how the motor carrier or driver violated the rule or caused the danger, and (4) emphasizing that the motor carrier’s and/or the driver’s action or inaction “needlessly endangers the community.” In theory, the emphasis on a motor carrier’s or driver’s violation of a safety rule appeals to the jurors’ “reptile” brain, and encourages jurors to take action, usually by way of awarding large damages, to protect their community.
In December 2017, many motor carriers across the country will be required to implement ELDs in their tractor trailer operations and, as a result, will have easy access to voluminous amounts of data concerning their drivers, commercial motor vehicles, and operations that they did not have access to before. ELDs will undoubtedly assist defense attorneys by making it easier to spot potential hours-of-service and other violations, will significantly benefit the trucking industry in terms of cost savings, and will prevent approximately 20 fatalities and 434 injuries per year. (Electronic Log Mandate, Michael F. Nerone, Esq. and Christine R. Tartamella, Esq., Dec. 31, 2015, p. 3, https://c.ymcdn.com/sites/tida.site-ym.com/resource/resmgr/News/Electronic_Log_Mandate_Artic.pdf). However, the ease of access to such information will undeniably assist plaintiff’s lawyers in identifying safety rules or regulations that a motor carrier or driver failed to comply with, either at the time of or prior to the collision at issue. For example, the digitalization of driver’s logs and the data that will be recorded and maintained by ELD providers will result in greater access to information that a smaller motor carrier likely did not have access to. Having access to such data will undeniably change the way that claims against smaller fleets are litigated, possibly leading to an increase in such claims and added pressure on the motor carrier to add its own money beyond the applicable insurance policy limits to ensure the settlement of a claim.
While ELDs must automatically connect to an engine’s control module and record certain data, including the date, time, vehicle location and motion status, vehicle mileage, engine hours and power status, ELDs are not required to track and document a driver’s speed, hard brakes, or exact location through GPS tracking. (See 49 C.F.R. § 395.26). However, many ELDs will offer comprehensive solutions beyond what is required by the ELD mandate, including integrating ELDs with other useful fleet management tools such as analytics software designed to identify changes in driving patterns, provide real-time alerts, and recommend ways to address possible safety concerns. A motor carrier utilizing an ELD provider that offers more than the ELD mandate may potentially open itself up to broad discovery requests for information that the motor carrier would not normally possess and that is not required by the ELD mandate. While the ELD mandate does not require a motor carrier to maintain information concerning a driver’s speed or hard brakes, it is possible that courts may require motor carriers to produce such information in discovery if it is recorded and maintained by the ELD provider, and is easily accessible by the motor carrier. (See analysis of this issue in Section B supra). After December 2017, a plaintiff’s lawyer will be able to look to one source – the ELD provider – to obtain information concerning a driver’s hours-of-service violations, driver’s logs for a period of at least six months prior to a collision, a driver’s speed and exact location at a particular time, a driver’s hard brakes, communications between the driver and dispatcher, routes taken by the driver on the date of the collision, weather conditions at a particular time, and video monitoring. This voluminous, detailed, and easy-to-obtain data could make it easier for plaintiff’s lawyers to inflate the value of their case, resulting in higher settlements. This voluminous data will also assist plaintiffs in appealing to the jurors’ “reptile” brain by emphasizing prior instances of unsafe driving, prior violations of the FMCSRs by the motor carrier and/or driver, and the receipt of notifications concerning driver violations. There is no doubt that evidence of prior violations of the FMCSRs can be persuasively used to appeal to the community-conscious minds of the jury.
Information recorded and maintained by ELDs will be especially helpful to a plaintiff’s lawyer during the deposition of a motor carrier’s safety director. Imagine a case where a driver was in violation of an hours-of-service regulation at the time of the collision, the ELDs produced by the motor carrier identified other prior hours-of-service violations by the same driver, and the ELDs clearly document each and every notice sent to and received by the driver and motor carrier prior to and after each hours-of-service violation. Now imagine that, after pointing out each and every violation of the FMCSRs by the driver along with the pre-and-post notice of violation received by the motor carrier, the safety director of the motor carrier admits that no warnings or reprimands were given to the driver and no additional training was provided. Not only would such facts support a claim for negligent training, negligent supervision, and/or negligent entrustment, they could support a claim for punitive damages depending upon the nature of the prior violations and whether such violations were similar to the violation at issue in the litigation. It is easy to imagine how this narrative would play out at trial and how having this data from the motor carrier’s own ELD provider will allow a plaintiff’s lawyer to persuasively argue that the motor carrier is clearly indifferent to violations of the FMCSRs by its drivers and is not concerned with the safety of other drivers operating in the community.
In addition to providing information concerning the driver involved in the collision at issue, ELDs will allow a plaintiff’s lawyer access to information concerning other drivers of the motor carrier, including hours-of-service violations and accidents. As noted above, one can appreciate how a juror may be compelled to award damages to a plaintiff after learning that the motor carrier knew that the driver involved in the collision had prior hours-of-service violations and did nothing to address the violation. But imagine how angry that same juror may become if there was also evidence showing that the motor carrier was indifferent to violations by all of its drivers, notwithstanding the motor carrier’s easy access to analytical and other data clearly documenting such violations. There is no doubt that this compilation of data provided by ELDs will greatly benefit plaintiff’s attorneys in appealing to the jury’s interest in protecting their community from unnecessary danger.
B. The ELD Mandate and the Increase of ESI in Trucking Litigation
While the average trucking case may not involve discovery of electronically stored information (“ESI”), that could change after December 2017 and the implementation of the ELD mandate. As discussed above, ELD providers will offer widely differing functionality and options beyond those required by the ELD mandate, which will result in voluminous amounts of documentation and data not previously maintained by many motor carriers. ELD devices that offer additional features beyond what is required under the mandate raise interesting ESI implications. For example, the fact that a motor carrier does not subscribe to certain features does not necessarily mean that the ELD provider is not collecting or documenting such data. As we all know, if data exists, shrewd attorneys will seek to get their hands on it, which begs the question of whether and to what extent a motor carrier will be required to preserve, track down, obtain, and produce such information in discovery.
For example, in Smith, et al v. Burch Corporation, (Civil Action File No. 14EV000522C, Order March 5, 2015 [St. Ct. Ga. 2014]), the court compelled a non-party providing GPS tracking and similar data to produce data and generate reports that the defendant company did not subscribe to prior to the litigation. Specifically, in Smith, the defendant’s vans were equipped with third-party subscription-based GPS systems that could provide information beyond GPS tracking; however, the defendant did not subscribe to or utilize those options. Despite the fact that the defendant did not receive the other services offered by the provider, it was possible for the provider to generate reports in addition to the reports received by the defendant. While the Georgia Civil Practice Act does not require parties to generate documents that did not previously exist, the court in Smith compelled the non-party provider to produce the reports that the defendant did not subscribe to, presumably because the provider had the data and could easily create the requested reports with the push of a button. Although Smith is non-binding precedent in Georgia, the holding is an example of the information that motor carriers may be required to produce in discovery when they have easy access to relevant data maintained by their ELD provider.
Along the same lines, the data and documentation that will be maintained by ELD providers and the ability to generate data and analytics not required by the ELD mandate will unquestionably lead to voluminous amounts of ESI being produced in discovery. There is no doubt that courts across the United States will soon consider the scope of the ESI that must be produced by a motor carrier in the context of motions to compel discovery. For example, does the fact that an ELD provider maintains endless amounts of data concerning the motor carrier and its drivers mean that the motor carrier must produce all of that data to a plaintiff during discovery even though the FMCSRs do not require the motor carrier to maintain data or documentation beyond a certain, specified period of time? At what point will a plaintiff be considered to be on a fishing expedition or requesting irrelevant information before a court will limit a request for information concerning all of a motor carrier’s violations from years before the collision?
In addition to increased documentation, we may also see a rise in the number of motor carriers and drivers, even smaller fleets, utilizing forward-facing cameras as more ELD providers provide video equipment and maintenance of video as an option. Electronic storage of video is expensive and such expense will surely influence every motor carrier’s policy concerning how long a video should be preserved following a reportable incident. In addition to preservation concerns, the increased use of forward-facing cameras may also provide a motor carrier with notifications of dangerous actions by the driver, such as quick lane changes or fast stops. A motor carrier can also set up an inward-facing camera system to provide alerts when a driver is tired or distracted. Having access to this information, especially notifications of a driver’s previous unsafe driving, will likely further complicate discovery and the issue of whether such videos are discoverable. Will a motor carrier utilizing cameras be compelled to provide any and all video footage of the driver at issue to the extent that such footage is maintained by the ELD provider? Will the ELD provider’s and/or the motor carrier’s failure to preserve all video of the driver be considered spoliation of evidence, especially in circumstances involving prior notice of bad or unsafe driving? While it is not clear how much video footage a motor carrier may be required to maintain, whether on its own or through use of its ELD provider, there is no doubt that courts will address this issue in the months following implementation of the ELD mandate.
The number of third party companies offering ELD devices and data storage will likely grow after December 2017. As with any other industry, some companies will provide excellent ELD products and services while others will not. The industry will likely see ELD providers come and go in the coming years, and unexpected issues may arise when an ELD provider goes out of business, loses data, or is hacked or otherwise compromised. For example, while ELDs will make document retention and maintenance easier in some respects, the uncertainty of how various ELD providers will fare and whether the motor carrier’s information can be lost or compromised increases the burden on the motor carrier to ensure that they are properly maintaining relevant documents and ESI in accordance with the FMCSRs and the ELD mandate.
Although the ELD mandate requires motor carriers to maintain various documents supporting the information maintained by its ELD provider, the question of what specific steps a motor carrier must take to ensure that such supporting documentation is maintained is an issue that will likely be addressed by courts following implementation of the ELD mandate. While this issues remains to be determined, motor carriers will likely be required to do more than merely print the supporting documentation and place it in a file folder. In O’Berry v. Turner, (7:15-CV-00064, 2016 WL 1700403 [M.D. Ga. 2016]), plaintiff filed a motion for sanctions due the motor carrier’s failure to produce relevant ESI. (Id. at *1). The facts showed that the motor carrier printed off one copy of the ESI at issue and placed it in a manila folder, which was subsequently moved to a different building by a moving crew and was lost. (Id. at *2-3). After receiving an evidence preservation letter, the motor carrier took no additional steps to ensure that the relevant ESI maintained by the third-party was preserved. (Id. at *3). Because there was only one hard copy of the ESI and such copy was placed in the hands of various people and subsequently lost, the court concluded that the motor carrier failed to take reasonable steps to preserve the ESI. (Id.) In applying amended Federal Rule 37(e), the court focused on the fact that the motor carrier printed off one copy of the relevant ESI and, as a result, held that an adverse inference instruction, in which it would instruct the jury that it must presume that the lost evidence was harmful to the defendant, was the appropriate remedy. (Id.)
While O’Berry v. Turner involved a complete spoliation of evidence in the pre-ELD mandate era, the Court’s discussion and analysis concerning the motor carrier’s obligation to take steps to preserve ESI in addition to maintaining a hard copy is instructive. Defense attorneys will likely see this become an issue in discovery following implementation of the ELD mandate.
While the ELD mandate will benefit the trucking industry and make the defense of trucking cases easier in a number of respects, the vast amount of information that will be available to a plaintiff’s lawyer in discovery will make it much easier for those lawyers utilizing “reptile” tactics to pinpoint a specific danger and/or safety issue caused by the motor carrier and/or driver and use such danger or safety issue to appeal to the community-conscious minds of the jury. Additionally, the ELD mandate will certainly lead to an increase in ESI in trucking litigation and will likely raise concerns as to the discoverability of the extensive data maintained by a motor carrier’s ELD provider. How plaintiff’s lawyers will utilize ELD data in discovery and at trial and the extent to which such data will be discoverable will likely be a topic of concern among defense attorneys in the near future.
Originally published in DRI Trucking Law Committee Newsletter on October 26, 2017
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