The Importance of "Evidence Preservation": Part 6 - Records Retention

Robert Franklin posted on 2010/06/22 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 6 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

The specific minimum requirements for records retention by interstate carriers, brokers, and freight forwarders are set forth in Part 379 of 49 CFR. While such regulations are not binding upon an intrastate, or otherwise exempt, entity, many states have adopted 49 CFR, in whole or in part, so that they may effectively apply. Moreover, even when they are not specifically applicable, a plaintiff may well argue that they provide an example of reasonable conduct, and thus the failure to abide by them could be deemed to constitute negligence, or provide the basis for a spoliation claim.

The basic standards for the hazards from which records must be protected are provided in 49 CFR 379.5. Issues with regard to preserving records in electronic or other forms are addressed in 49 CFR 379.7. The procedure for securing a waiver of the federal requirements is set forth in 49 CFR 379.11.

The real "meat" of the federal record retention regulations is set forth in Appendix A to Part 379 of 49 CFR. The table in that Appendix sets forth, in detail, a "laundry list" of records which must be preserved, as well as specification of a retention period for each.

Setting aside the specific minimum federal requirements for records retention, it is clearly prudent to preserve a variety of records in conjunction with any accident which could later result in litigation. One should, for example, always retain the driver's qualification file, as well as his or her logs for the date of accident and the time leading up to it (including supporting documents, such as fuel and toll receipts, etc.). Documentation regarding the equipment should also be maintained, as well as that pertaining to the lading, as there may be an argument that the weight or distribution of the load caused or contributed to the accident. Of course, all records regarding the incident itself (photographs, citations, etc.) should be retained.

It should also be noted that the statute of limitations applicable to a tort action often exceeds the minimum time period for the storage of records. For example, logs must be retained, under the applicable regulations, for a period of six months. One may have two or three years, however, subsequent to the date of accident, in order to file suit. Accordingly, one could legally destroy the logs after six months, even with knowledge that the logs pertain to a date when the subject driver was involved in a serious accident. Indeed, one major interstate motor carrier has been vocal about its policy of destroying records upon expiration of the time mandated by the regulations. Others, however, including this writer, believe it is a far more prudent course of action to retain the records pending litigation, because of the potential inference, and thus negative impact on a jury, of having destroyed them.

The issues related to electronically stored records, including the so‑called "e-discovery" rules (to be addressed separately in Part 7 of this series) have further complicated the situation. In short, it is a difficult chore to even identify all of the various types of electronically stored records an entity may have, including those which may have officially been destroyed, but copies of which have been retained on an individual's computer.

Whatever one's record retention policies may be, it is important to establish and articulate those policies and related procedures, and to educate one's employees with regard to them. It is also important to have a system in place whereby the entity can monitor and help see that the procedures are followed. The destruction of a record in violation of one's own articulated standard would, obviously, make the inference in terms of a potentially sinister reason for having destroyed the records, all the more dangerous.

As is readily apparent, there are a host of records, both within the applicable regulations, as well as beyond them, which may be relevant in litigation and thus which should be preserved. It is recognized that taking all of the actions necessary to promulgate, and adhere to, a policy of records preservation will require the expenditure of resources. It is suggested, however, that the "cost" of doing that is far less than the "cost" one may incur, in terms of damages and verdicts, if such action is not diligently undertaken.

The "Preservation of Evidence" Series

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