Sell the bad truth, not the good lie

by Julia Kuzeljevich

TORONTO, Ont. – It’s 3 a. m. and you’ve taken the call. One of your drivers has been involved in an accident, he’s on U. S. soil, and things are a mess.

You rub your eyes and ponder the next step.

There is the obvious protocol of gathering as much information as possible from witnesses and through photographs.

But it doesn’t end there, now that the world of electronic discovery has changed.

For truckers involved in accidents on US soil, the atmosphere is often quite litigious with many potential areas of exposure. And in the blink of an eye, your whole operation is involved.

Since December 2006, new US Federal Rules for Civil Procedures (FRCP) now lay out how enterprises must respond when asked to produce documents in a lawsuit.

The amendments now introduce the phrase “electronically stored information” to existing Rules 26(a)(1), 33, and 34, to acknowledge that electronically stored information is discoverable. Its aim is to be broad enough to cover all current types of computer-based information, and flexible enough to handle changing technology.

There is a “Safe Harbour” provision, which provides that a court “may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, goodfaith operation of an electronic information system.”

It responds to the routine modification, overwriting, and deletion of information that happens in normal use of electronic information systems.

Nevertheless, these e-discovery rules add to already stringent data retention conditions (for companies under Sarbanes-Oxley for public firms) and increasingly focus on technology that will retrieve and restore documents stored on backup tapes or hard drives.

According to Brian Wood, a partner with Lind, Jensen, Sullivan and Peterson, the amount of information that is available, whether on paper, or electronically, “is incredible.”

“Trucking companies should therefore have a records retention policy to safeguard against documents that may become inadvertently destroyed,” said Wood.

Wood was part of a panel of experts speaking at the recent OTA convention on US liability issues for Canadian fleets.

The panel also discussed the services of the Trucking Industry Defense Association (TIDA), which has been working in close association with OTA.

TIDA, founded in 1993, includes among its membership some 1,000 motor carriers, trucking insurers, defence attorneys and claims servicing companies.

The association aims to reduce the cost of claims and lawsuits against the trucking industry and to advocate on behalf of the industry’s interests through providing resource materials and contact information for companies facing legal and/or insurance issues.

Courts in the US will tend to look at as much data as possible, from data that is the easiest to process, because it is active and online, down to data that has been erased or is fragmented or incomplete.

Basically, even data you thought was gone for good can be called upon as evidence. Accessing fragmented or erased data can take hours at a steep price, sometimes to the plaintiff.

“E-discovery is so vague, they can still come after you for something you’ve missed,” said Mehdi Arradizadeh, director of claims with Schneider National.

It’s also not unusual now for Google, YouTube and social networking site searches to yield admissible background information about the character of those involved in a lawsuit.

“The use of the Internet is incredibly important from a claims perspective,” said Arradizadeh.

And according to Arradizadeh, the larger trucking companies implicated in litigation suits will often find themselves paying for many of the plaintiff’s legal costs, “so if you’re a large company you’d better have a protocol in place,” he said.

Such a protocol might include keeping all manner of safety and maintenance records as well as employment files.

This could include logbook entries as compared to satellite tracking devices, as compared to a truck’s ECM. In Ontario, the CVOR record and inspection reports may be subject to investigation.

Any discrepancies in logbook entries could potentially lead to further investigation of a company’s training procedures, and then the plot thickens.

Then there are the damage issues.

Trucking companies who are involved in litigation procedures may be subject to damages considered compensatory, covering medical expenses, whether for treatments since the time of the accident and going into future treatments, as well as lost wages and property damage.

General damages are considered to be those relating to pain and suffering and mental anguish.

Punitive damages, meanwhile, act to punish a defendant for acts done in the past, and to deter them from any future acts.

Stanley Tessis, a partner with Laxton Glass LLP in Toronto, noted that in Canada, punitive damages are generally capped and rarely awarded in truck accident cases.

“But there is a proliferation of reports detailing items such as future home care and medical costs,” he said.

“Any damage claims have to have a causal relationship to the accident,” said Doug Marcello, partner with Marcello and Kivisto, LLC. He also noted that where companies may get hit hard on the compensatory damages side, there is frequently a lot of opportunity to attack a plaintiff’s credibility on the general damages side.

But in the interest of good defence, it is important to disclose, to your attorney, any information or discrepancy that, while it may be an oversight, could be construed as wilful destruction or put you in the potential hot seat.

“I can sell a bad truth but I can’t sell a good lie,” said Marcello.

The panel experts stressed the importance of good record retention and having a protocol in place to deal with the potential for defending against a claim.

But they also noted areas where an organization such as TIDA could help pick up the pieces in the event that a Canadian driver is involved in an accident in a jurisdiction that is completely unfamiliar.

TIDA membership, for example, provides the opportunity to access attorneys in-sync with emergency response protocol and with local state laws.

But while you cannot erase the fact that an accident has occurred, “You can influence what happens from the point of the accident onward. You need to get someone to the scene ASAP as the driver may be too in shock to handle the information,” said Richard Bapst, regional claims manager for The Great West Casualty Company.


“Trucking companies should…have a records retention policy to safeguard against documents that may become inadvertently destroyed,”

-Brian Wood, lawyer

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