The Importance of "Evidence Preservation": Part 5 - Internal Investigations

Robert Franklin posted on 2010/03/23 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 5 in a 9 part series of related discussions. The full list of the parts to this series appears following this installment.

Companies typically conduct investigations of accidents in which their equipment is involved, often through a "safety committee". Such investigations frequently include a "preventability" finding in conjunction with the accident. While there are legitimate reasons to conduct such investigations (e.g. the attempt to avoid similar accidents in the future), they should be conducted with their potential impact on related civil litigation in mind.

First of all, one must keep in mind that nearly all communications, findings, and "internal documents" are now discoverable. Even text messages or emails between company representatives, or initial drafts of later revised reports, can regularly be obtained by opposing counsel. There are privileges (e.g. attorney-client) which may be raised, but one can never count on being successful in that regard. Moreover, the impact of having to disclose a problematic communication or document can dramatically increase one's exposure.

Consider the following example, which was actually encountered. A driver was involved in a "rear-end accident" resulting in relatively minor personal injury. The company's safety representative found the driver at fault and wanted to fire him. Noting that the company already faced a shortage of qualified drivers, the vice president of operations, overruled the safety representative, concluding that the driver's record was "satisfactory overall".

In response, the safety representative took two actions. First of all, he sent an email to the vice president of operations expressing his disappointment with the decision, stating that he continued to believe that the subject driver was "the most dangerous driver in the fleet". In addition, he wrote to the driver, emphasizing his concern over how "unsafe" he believed the driver was and how the safety representative would, accordingly, "be watching" him.

The same driver was later involved in a subsequent rear-end accident, which resulted in very serious injuries. We understood, from the outset, that liability was clear, and had intended to focus on minimizing the resulting compensatory damages. I then learned of the prior communications and documents referred to above. Fortunately, we were able to resolve the claim before having to disclose the subject documents. If we had been forced to turn them over, the value of the claim would have increased dramatically, pursuant to a "negligent entrustment" claim. Indeed, in some jurisdictions, we could have been faced with punitive damages, which would not have been available based solely upon the underlying fact of the two accidents.

There are similar problems with "preventability" findings. While these were once required by the FMCSR, that requirement was eliminated long ago, with the repeal of 49 CFR §394 in 1993. Nonetheless, many companies continue to routinely make such findings, and have policies based upon them (e.g. termination for two in one year, and a bonus for a year with none). These findings, however, can have a devastating impact on related civil litigation.

Those with experience in the transportation industry fully understand that the standard for "preventability" is much broader than negligence, and does not necessarily mean that the driver is legally liable. Lay people, however, including jurors, usually do not understand such distinctions. To them, your own safety representative admitted that your driver was at fault, and thus they will find liability against the motor carrier when a preventability finding was made, regardless of any attempt to explain the difference in standards.

This discussion is not meant to suggest that safety investigations do not serve important purposes, or should be eliminated. It is, however, intended to emphasize the importance of having those involved in the investigation process be aware of the potential impact of their actions on related civil litigation. One should assume that any document he or she creates will end up in the hands of opposing counsel. Accordingly, the "acid test" for creating a document is whether the author will later be comfortable testifying, before a jury, with that same document blown up on a big screen in court.

One should similarly be aware of knee jerk findings with regard to fault. We frequently encounter, for example, accident reports in workers' compensation claims which indicate that the injury was due to the employee's fault, with little or no basis for such a finding. That, of course, does not serve as a defense in the workers' compensation claim, as that is a "no fault" system. The finding can, however, have a significantly adverse impact when the employer, and/or its insurer, later attempt to subrogate the claim against a responsible third party. The third party defendant can then utilize the employer's own internal document as the basis for arguing contributory negligence on the part of the employee, which could bar, or reduce, the subrogation claim, depending upon the applicable jurisdiction.

One should similarly keep in mind the potential impact of a "preventability" finding. The volume and quality of information which will be developed in an accident involving serious injury will almost always be dramatically greater than that which can be obtained in a routine internal safety investigation. Accordingly, one may wish to "defer" conducting an internal safety investigation and finding, in such an instance, on the basis that the company will wait until it has the benefit of all of the information and documentation which will be developed in the related litigation. In that instance, of course, one must deal with the driver, in terms of whether to put him or her back out on the road. Some companies simply place the driver on "unpaid leave", understanding that the driver will then almost certainly seek other employment. One may also include language on the forms related to the investigation and finding emphasizing the distinction between preventability and negligence although that may, as a practical matter, not be a significant help with jurors.

Safety representatives perform important functions, and their investigations can be valuable tools for motor carriers for whom they work or consult. All of those involved in the investigation process, however, need to be well versed on the potential impact of their actions on related civil litigation, so that they can keep the ramifications in mind when conducting their investigations, while making findings and preparing reports. By conducting investigations in this fashion, one may be able to reap the benefits of conducting investigations without the unintended yet devastating consequences in related civil litigation.

The "Preservation of Evidence" Series

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